Cecil v. Rose

Eccleston, J., 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 ⁶⁸ ant 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