delivered the opinion of this court.

At the November term 1857, of the Circuit Court for Prince Georges county, a petition for freedom, which had been previously filed by the present appellees, was dismissed. Subsequently this petition was filed; and, at November term 1858, the defendant below, now appellant, filed his petition, stating that the former petition had been filed by the same parties, which had been dismissed; and that he had been subjected to large costs and expenses in the defence of that case, and in the maintenance of the negroes during the pendency of the same, amounting in the aggregate to the sum of $377.53. He therefore prayed the court to pass an order staying all proceedings in this second petition for freedom, until the said costs and expenses should be paid, or secured to be paid.

Whereupon the court passed an order allowing the defend*68ant sundry items, for costs and expenses, amounting to the sum of $88.93$, “and no more.” From this order the de-; fendant appealed.

The Act of 1796, ch. 67, sec. 27, enacts: “That if any petition 'for freedom shall hereafter be filed in any court of law in this State, and dismissed, and a second petition filed at the suit of the same party, the court, in which such second petition may be filed, shall order a stay of all proceedings until the costs of the former petition, and all reasonable damages and expenses sustained or incurred by the defendant or defendants therein, to be ascertained by the court, shall have been paid, or secured to be paid.”

The appellant’s counsel contends, that admitting (as the appellee’s counsel have supposed) a discretion is given to the court, by the provision requiring the reasonable damages and expenses sustained or incurred by the defendant, “to be ascertained by the court,” still those words “do not imply an arbitrary discretion, but an examination and judgment upon legal evidence, from which an appeal will lie by either party feeling himself thereby aggrieved.” We, however, do not think there is any appeal from such a decision, if the ascertainment, when made, is within the limits of the court’s discretion. In Negroes Bell, et al., vs. Jones, 10 Md. Rep., 322, it was not necessary to decide the same question now before us. That appeal was sustained upon two grounds, neither of which is here presented.

The first was, the order of ascertainment contained an allowance for counsel fees as expenses, which fees this court held the Legislature never designed should be so allowed, and, therefore, not being included within the discretion given by the Act, the order allowing the same was, to that extent, without authority, and consequently erroneous.

The second ground was, an error in the order for want of sufficient certainty in the amount of the expenses.

The present appellant, of course, does not object to the order, because the expenses allowed are not within the limits of the court’s discretion; his complaint is, that items proper to be allowed were rejected. No objection is made, or can be fpajle, to the order for uncertainty,

The statute imposes a duty, confers a discretion, and provides for performing the same in a summary way, contrary to 4,he usual course of the common law, in ascertaining the amount of damages and expenses, which one party claims of another, aod without expressly giving an appeal from such ascertainment.

In the court below the parties and witnesses are present, and all the attendant circumstances must general^ be more fully known and better understood than they can be from a statement of evidence in a record, and therefore a matter of discretion can be more appropriately decided in the court below than in an appellate tribunal, in which the decision must be upon what is disclosed in the record alone.

In reference to the subject of appeal in cases of discretion, see the authorities cited on the part of the appellee, in Negroes Bell, et al., vs. Jones, 10 Md. Rep., 327.

In regard to appeals see, also, Wilmington & Susquehanna Rail Road Co. vs. Condon, 8 G. & J., 443, and Webster, et al., vs. Cockey, et al., 9 Gill, 92.

Appeal dismissed.