Page:Black's Law Dictionary (Second Edition).djvu/383

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Co. 77 Fed. 249, 23 C. C. A. 156; Book v. Mining Co. (C. C.) 58 Fed. 106: Muidrick v. Brown, 37 Or. 185, 61 Pac. 428; Mining Co. v. Rutter, 87 Fed. 806. 31 C. C. A. 223.

{{anchor+|.|—Discovery, bill of. In equity pleading. A bill for the discovery of facts resting in the knowledge of the defendant, or of deeds or writings, or other things in his custody or power; but staking no relief in consequence of the discovery, though it may pray for a stay of proceedings at law till the discovery is made. Story. Eq. Pl. §§ 311, 312, and notes; Mitf. Eq. Pl. 53.

DISCREDIT. To destroy or impair the credibility of a person; to impeach: to lessen the degree or credit to be accorded to a witness or document, as by impugning the veracity of the one or the genuineness of the other; to disparage or weaken the reliance upon the testimony of a witness, or upon documentary evidence, by any means whatever.

DISCREPANCY. A difference between two things which ought to be identical, as between one writing and another; a variance, (q. v.)

Discretio est discernere per legem quid sit justum. 10 Coke, 140. Discretion is to know through law what is just.

DISCRETION. A liberty or privilege allowed to a judge, within the confines of right and justice, but independent of narrow and iinhending rules of positive law. to decide rind act in accordance with what is fair, r-qiiitahlc, and wholesome, as determined upon the peculiar circumstances of the case, and as discerned by his pei SD].l1\l wisdom nnd experience, guided by the spirit. principles, and analogies of the lnvv. Osborn v. United States Bank. 9 Whc:1t. 866, 6 L. Ed. 204; Ex Dfl.i'te Chase. 43 Ain 310: Lent v. Tillson, 1-10 U. S. 316. 1] Sup. Ct. 825. '3 L. Ed. -119: State v. C\'li.Ul.LllI1gS, 36 Mo. 2 ; l\illl'l‘Iy v. Iliiell_ 74 Wis. 1-1, 41 N. W. 1010; Perrv v.

~‘:ilt Lake City Cniiiicii. 7 Utah, 143. 25 Pac.

'03. 11 L. R. A. 446.

When applied to public functionaries, discretion means a power or rixzht conferred upon them by law of acting oilicinlly in certain cir- cumstances, according to the dictates of their awn jiiilginent and conscience, iincontrolied by the judpment or conscience of others. This dis- (‘l‘QtlDn undoubtedly is to some extent regulated by iisnse, or, if thc term is preferred, by fixed principles But by this is to be understand imtliing more than tiiat the same court cannot. consistently with its own dignity, and with its rhnracter and duty of ndininistsring impartial iiistice, decide in different ways two cases in every respect exactly alike. The question of fact whether the two cases are alike in every color, rircumstance, and [nature is of necessity in he submitted to the jiiilzincnt of some iii- hiiniil. Judges v. People, 18 Wcnd. (N. Y.l 79. Q


Lord Coke defines judicial discretion to ho "iii.-mznievr per legs-m quill sit iu.rtmri.." Io see What would be just according to the laws in tbn premises. it dues not mean a wild sivlt-\iilliulncss, which may prompt to nny and eiciy


net: but this judicial discretion is guided by tli_e iaiw, (see what the low declares upon a certain statement of facts, and then decide in accordance with the law.) so as to do substantial gggirq and justice. iI'i1ber v. Bruner, 18 Mo.

Tnie, it is a matter of discretion: but then the discretion is not willful or arbitrary, but iegni. Auil, aitiioiigh its exercise llf‘ not piirciv a matter of law. yet it “iiirvaIm'.i a matter of law or legal infereni-e." in the language nf the Code, and an appeal will lie. Lovinier v. Peari . 70 N. C. 171.

In criminal law and the law of torts. it

nieans the ciipacity to distinguish betueeii what is right and wrong. lawful or unlawful, wise or foolish, sufficiently to render one amenable and l'(-‘S1IUl.|SliJle for his acts. Towle v. State, 3 Fla. 214. %nd.i¢:ial rliserahon, legal discretion. These terms are nppiicd to the disuretioniiiy iii-lion of a judge or court and mean (ll! it-tiun as lihuve llehueil. that is, discretion bounded by the rides and principies of law, and not arbitrary, CB|J1'illULlS, or unrestrained.

DISCRETIONARY TRUSTS. Such as nre not marked out on fixed lines, but allow a certain amount of disci-(-tioii in their exer- cise. Those which cannot be duly admin- istered without the application 01' a certain degree of prudence and judgment

DISCUSSION. In the civil. law. A proteeding, at the instance of a surety. hv which the creditor is obliged to exhaust the prnpertv of the principal debtor. toiraiils thi- satisfnction of the debt, before liming recourse to the surety; and this right of the Slll'el'} is termed the eiiefit of discus-‘on "' Civ. Corle La. nrt 3045, et seq.

In scotch law. The rnnking of the prop- er order in which heirs are liable to satisfy the debts of the deceased. Bell.

DISEASE. In co1isti'iiin,r; a policy of life insuiaiice. it is generally true that, before any temporary ailment can be called a "disease." it must be such as to indicate a rice in the constitution, or he so serious as to have some bearing upon general health and the continuance of life, or such as, according: to common understanding, would be called 11 “disease." CllSlJl.Lli1l] v. Insurance 00., 70 N. Y. 77: Insurance Co. v. Yuiig. 113 Ind. 1.39. 15 N. E. 220, 3 Am. St. Rep. 630; Iiisur n Co. v. Simpson. 88 Tex. 333, 3] S. W. ll. 28 L. R. A. 765, 53 Am St. Rep. 751 De- laney v. Modern Arc. Club. 121 Iowa. 97 N. W. 91, 63 L. [L A (303.

DISENTAILING DEED. In Engi'Sh law. An enrolled assurance liarring an entail. pursuant to 3 & 4 Win. IV. c. 74.

DISPRANCHISE. To deprive of the rights and privileges of a free citizen; to deprive of chartered riglits and iu.imunit1c : to depiive of any franchise, as of the right

of \ in elections, etc. Webster.