ART. IV] JUDICIARY DEPARTMENT. 73

Where a case is removed from one court of Baltimore City to another,
the fact that it may come to trial before the same judge is immaterial,
since the object of the constitutional right of removal was to enable par-
ties to get rid of any local prejudice which might affect a jury. Chappel
Chemical, etc., Co. v. Sulphur Mine Co., 85 Md. 684.

The jurisdiction of the court is not ousted by the suggestion and affi-
davit of removal; it may be withdrawn and the case proceeded with at
any time before the order of removal is passed. Manly v. State, 7 Md. 146.

The right of removal of a case can be surrendered or waived; such
right held to have been waived. Caledonian Fire Co. v. Traub, 86 Md. 93.

A case pending in the circuit court on appeal from a justice of the peace
may not be removed under this section. Hoshall v. Hoffacker. 11 Md.
363; Geekie v. Harbourd, 52 Md. 461.

Proceedings for the forfeiture of corporate franchises for abuse, etc.,
held not to be removable under this section—see article 23, section 82, of
the Annotated Code, et seq. Bel Air Social, etc., Club v. State, 74 Md. 300.

This section does not embrace issues framed at the instance of a cred-
itor in insolvency proceedings. Trayhern v. Hamill, 53 Md. 91.

Where a ease is removed from Baltimore City to Baltimore county, this
section (as it stood in the constitution of 1851) is complied with. Design
of this section; it will be construed liberally. Wright v. Hammer, 5 Md.
375. And see State v. Shillingen, 6 Md. 450; Griffin v. Leslie. 20 Md. 18;
Price v. Nesbit, 29 Md. 266.

The sufficiency of an affidavit that the "parties believe they can not have
a fair, etc., trial," not passed on. Desche v. Gies, 56 Md. 137.

Criminal cases.

Since the amendment of 1874, chapter 364, the courts are given the dis-
cretion in criminal cases other than those punishable by death, to order
the removal of a case; hence in the absence of evidence to show that the
court acted arbitrarily and abused or refused to exercise such discretion,
the case will not be reversed. The real question is not whether the court
of appeals would have been satisfied that a fair trial could not be had in
the court of original jurisdiction, but whether there has been an abuse by
that court of the discretion given it by the constitution. Newspaper clip-
pings and affidavits held not to show conclusively or by positive evidence
that the lower court abused its discretion. History and purpose of this
section. Downs v. State, 111 Md. 241.

The portion of this section providing for the removal of criminal cases
means that when the case is to be tried on. the presentment and there is a
suggestion for a removal, the record of proceedings in such presentment
are transmitted, etc. The section referred to in deciding that a valid
presentment is the commencement of a prosecution within the meaning of
our statute of limitations applicable to prosecutions for misdemeanors—
see article 57, section 11, of the Annotated Code. State v. Kiefer, 90 Md.
174.

The state may remove a criminal case under this section, and the state's
attorney is the proper person to make the affidavit. The removal may be
made at any time before the jurors are sworn. An order removing or
refusing to remove a case, civil or criminal, finally adjudicates a constitu-
tional right and an appeal or writ of error may be immediately prosecuted;
such an order can not be made the subject of a bill of exceptions. Mc-
Millan v. State, 68 Md. 309. And see Smith v. State, 44 Md. 533; Griffin v.
Leslie, 20 Md. 19.

This section as amended by the act of 1874, chapter 364, held to apply
where a traverser was indicted prior to its adoption, the affidavit for
removal being made after the amendment went into effect. Smith v. State,
44 Md. 533.

The act of 1821, chapter 244, directing the removal of criminal cases
from Baltimore City to Baltimore county and from Baltimore county to
Baltimore City, held invalid under this section. Intent of this section.
State v. Dashiell, 6 H. & J. 269.