Blacks Law Dict. 1st ed

374

DISCOVEKY

DISFRANCHISE

It by no means follows that every discovery is an Invention. 5 Blatchf. 121. Also used of the disclosure by a bankrupt of his property for the benefit of creditors. In practice. The disclosure by the de fendant of facts, titles, documents, or other things which are in his exclusive knowledge or possession, and which are necessary to the party seeking the discovery as a part of a cause or action pending or to be brought in another court, or as evidence of his rights or title in such proceeding. DISCOVERY, BILL OP. 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 bis custody or power; but seeking 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. PI. §§ 311, 312, and notes; Mitf. Eq. PI. 53. DISCREDIT. To destroy or impair the credibility of a person; to impeach; to lessen the degree of credit to be accorded to a wit ness or document, as by impugning the ve racity of the one or the gen uineness of the other; to disparage or weaken the reliance upon the testimony of a witness, or upon documentary evidence, by any means what ever. DISCREPANCY. A difference between two things which ought to be identical, as be tween one writing and another; a variance, 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 unbending rules of positive law, to de cide and act in accordance with what is fair, equitable, and wholesome, as determined up on the peculiar circumstances of the case, and as discerned by his personal wisdom and ex perience, guided by the spirit, principles, and analogies of the law. "When applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. This discretion undoubtedly is to some extent regulated by usage, or, if the term is preferred, by fixed principles. But by this is to be understood nothing more than that the same court cannot, consistently with its own dignity, and with its character and duty of administering

Impartial justice, decide in different ways two cases in every respect exactly alike. The question of fact whether the two cases are alike in every color, circumstance, and feature is of necessity to be submitted to the judgment of some tribunal. 18 Wend. 79, 99. Lord Coke defines judicial discretion to be "dis cernere per legem quid sit justum, " to see what would be just according to the laws in the prem ises. It does not mean a wild self-willfulness, which may prompt to any and every act; but this judicial discretion is guided by the law, (see what the law declares upon a certain statement of facts, and then decide in accordance with the law,) so as to do substantial equity and justice. 13 Mo. 543. True, it is a matter of discretion; but then the discretion is not willful or arbitrary, but legal. And, although its exercise be not purely a matter of law, yet it "involves a matter of law or legal in ference, " in the language of the Code, and an ap peal will lie. 70 N. C. 171. In criminal law and the law of torts, it means the capacity to distinguish between what is right and wrong, lawful or unlawful, wise or foolish, sufficiently to render one amenable and responsible for his acts. DISCRETIONARY TRUSTS. Such as are not marked out on fixed lines, but allow a certain amount of discretion in their exer cise. Those which cannot be duly admin istered without the application of a certain degree of prudence and judgment. DISCUSSION. In the civil law A proceeding, at the instance of a surety, by which the creditor is obliged to exhaust the property of the principal debtor, towards the satisfaction of the debt, before having re course to the surety; and this right of the surety is termed the "benefit of discussion." Civil Code La. art. 3045, et seq. In Scotch law. The ranking of the proper order in which heirs are liable to sat isfy the debts of the deceased. Bell. DISEASE. In construing a policy of life insurance, it is generally true that, before any temporary ailment can be called a "dis ease," it must be such as to indicate a vice in the constitution, or be 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 a "disease." 70 N. Y.77. DISENTAILING DEED. In English law. An enrolled assurance barring an en taiJ, pursuant to 3 & 4 Wm. IV. c. 74. DISFRANCHISE. To deprive of the rights and privileges of a free citizen; to de prive of chartered rights and immunilies; to deprive of any franchise, as of the right of voting in elections, etc. Webster.

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