72 CONSTITUTION OF MARYLAND. [ART. IV

ing jurisdiction in such cases for trial; and such' right of removal shall
exist upon suggestion in cases when all the Judges of said Court may
be disqualified,under the provisions of this Constitution to sit in any
case; and said Court to which the Record of Proceedings in such Suit
or Action, Issue, Presentment or Indictment may be so transmitted,
shall hear and determine the same in, like manner as if such Suit or
Action, Issue, Presentment or Indictment had been originally instituted
therein; and the General Assembly shall make such modification of
existing law as may be necessary to regulate and give force to this pro-
vision.]*

Non-jury cases.

Where a case is submitted to the court without a jury, the plaintiff is
entitled to a non-suit as in other cases; hence though a judge, in ruling
upon testimony, remarks incidentally that the plaintiffs are not entitled
to recover, the plaintiff is still entitled to take a non-suit at any time
before verdict. Hall v. Schuchardt. 34 aid. 18.

Issues sent by the orphans' court to a court of law constitute a "cause"
within the meaning of this section, and hence may be submitted to the
court without a jury. Houston v. Wilcox, 121 Md. 100.

The first clause of this section can not be regarded as restricting the
jurisdiction of the court or as conferring upon it a special jurisdiction;
hence the right of appeal is undoubted. Tinges v. Moale, 25 Md. 484.

A judgment rendered by a court without a jury, where it does iot
appear that there was any agreement or assent by both parties waiving
a jury trial, should be stricken out (changed by a local law in Baltimore
City). Desche v. Gies, 56 Md. 137.

Any party capable of being sued and of appearing in person or by
attorney, may assent to the submission of a case to a court without a
jury; hence such assent of an attorney for a lunatic is binding, " Cross v.
Kent, 32 Md. 584.

This section referred to in upholding certain rules of the circuit court
for Prince George's county dealing with jury and non-jury cases. Gam-
brill v. Parker, 31 Md. 5.

Removal of cases.

The act of 1874, chapter 94, providing that the order of removal might
be struck out unless the party making the suggestion pays the cost of
the record within sixty days after such order and causes the record to
be transmitted within the same period, held unconstitutional under this
section. Intent of this section; it has been liberally construed. Hoyer v.
Colton, 43 Md. 422. And see Knee v. City Passenger Ry. Co., 87 Md. 632.

Where a first trial miscarries because of the failure of the jury to
agree, the case may be removed at any time before the jury is sworn at
the second trial. Where a case has been removed, it will not be-remanded
because the affidavit for removal was made by the next friend of the in-
fant suing In the name of the state; a next friend is a "party" within the
meaning of this section. Deford v. State, use Keyser, 30 Md. 196.

Since the amendment of 1874, chapter 364, a party making affidavit of
removal has not the right to elect that the case shall be sent to some
court in a different circuit; the matter is within the discretion of the
court from which the case is removed. The removal of a case from the
court of common pleas to the superior court of Baltimore city is a removal
"to some other court" within the meaning of this section. De Murgiondo
v. Frazier, 63 Md. 95; Weiskittle v. State, use of Samuel, 58 Md. 155.

*Thus amended by act of 1874, chapter 364, ratified by the people at November
election, 1875.