142 APPEALS AND ERRORS. [ART. 5

This section applied. Canton Bank v. American Bonding Co., Ill Md. 53;
State v. Baltimore, etc., R. R. Co., 77 Md. 493; Lucke v. Clothing Cutters,
etc., 77 Md. 411; Barnshaw v. Sun Mutual, etc., Society, 68 Md. 477; Worth-
ington v. Cooke, 52 Md. 310; Farmers' Bank v. Thomas, 37 Md. 258; Howard
v. Carpenter, 22 Md. 256; Richardson v. Hall, 21 Md. 405; Beall v. Beall, 7
Gill, 237; Parker v. Sedwick, 4 Gill, 325.

Generally.

The propriety of the new trial must appear from the record. McCann v.
Sloau, 26 Md. 82; B. & O. R. R. Co. v. Black, 107 Md. 666.

A demurrer to a plea having been overruled, and the plaintiff having
declined to reply after leave, the case will not be remanded. Wiley v. Heaps.
89 Md. 47.

Instead of granting a new trial as this section authorizes, the court of
appeals may merely grant leave to the appellants to file an application for a
new trial. State v. Wilson, 107 Md. 137.

Where the lower court has not awarded the writ of mandamus but merely
a judgment for costs, the appellate court has the power under this section
to award the writ without remanding the case. Weber v. Zimmerman, 23
Md. 55.

This section vests the court with discretionary power to remand a case to
the lower court for trial upon its merits. Creager v. Hooper, 83 Md. 504;
Milske v. Steiner, etc., Co., 103 Md. 251.

This section indicates a design to give to the appellate court more extended
control. Lester v. Hardesty, 29 Md. 57 (dissenting opinion).

This section gives the appellate court no power to modify criminal sen-
tences, or to direct inferior courts to modify them. McDonald v. State, 45
Md. 97. (See, however, section 81, passed to give the court such power.)

For a case holding that the defendant had been given ample notice of a
trial following the remanding of a case under this section, see Weber v.
Fickey, 52 Md. 511.

Cited but not construed In United Rys. Co. v. Corbin, 109 Md. 56; State v.
B. & O. R. R. Co., 48 Md. 81.

1904, art. 5, sec. 23. 1888, art. 5, sec. 21. 1860, art. 5, sec. 17. 1819, ch. 149.

23. When, on the reversal of a judgment, a new trial shall ,be
awarded, the court of appeals, upon suggestion in writing by either of
the parties, supported by affidavits or other proper evidence that a fair
and impartial trial cannot be had in the, court where the judgment so
reversed shall have been rendered, shall direct their clerk to transmit
a copy of the record to the clerk of the court of some other county or
city, with an order to such court, directing them to proceed in such
action, and to a now trial thereof, in the same manner-as if no trial
had taken place, and as if such action had been originally instituted in
such court.

This section has no application if the party applying for removal has exer-
cised such right already. State v. B. & O. R. R. Co., 69 Md. 348.

Cited but not construed in United Rys. Co. v. Corbin, 109 Md. 56.

As to the removal of cases, see art. 75, sec. 102, et seq.

Ibid. sec. 24. 1888, art. 5, sec. 22. 1860, art. 5, sec. 18. 1831, ch. 203.

24. If an appeal or writ of error be dismissed when taken on any
order of the court antecedent to final judgment, and no final judgment
shall have been rendered, it shall be the duty of the said court, on
application of any of the parties, to order continuances in said case to
be entered, and the same to be proceeded with in the same manner and
with the same effect as if no such appeal or writ of error had been taken
or sued out; and either party may make such suggestion and new