KFLCC Kingdom Law 2nd Ed.

375

DISCOVERY

DISFRANCHISE

Co., 77 Fed. 249, 23 C. C. A. 156; Book v. Mining Co. (C. C.) 58 Fed. 106; Muldrick v. Brown, 37 Or. 185, 61 Pac 428; Mining Co. v. Rutter, 87 Fed. 806, 31 C. C. A. 223. —Discovery, bill of. In equity pleading. A bill for the discovery of facts resting in the knowledge of the defendant, or of deeds or writ ings, or other things in his custody or power; but seeking no relief in consequence of the dis covery, though it may pray for a stay of pro ceedings at law till the discovery is made. Story, Eq. PI. §§ 311, 312, and notes; Mitf. Bq. PI. 5a 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 genuineness of the other; to disparage or weaken the reliance upon the testimony of a witness, or upon documentary evidence, by any means what ever. A difference between two things which ought to be identical, as between one writing and another; a vari ance, (g. v.) Discretio est disceraere per legem quid •it jnstnm. 10 Coke, 140. Discretion is to know through law what is just. DISCRETION. A liberty or privilege al lowed to a judge, within the confines of right and justice, but independent of narrow and unbending rules of positive law, to decide 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 experience, guided by the spirit, principles, and analogies of the law. Osborn v. United States Bank, 9 Wheat 866, 6 L. Ed. 204; Ex parte Chase, 43 Ala. 310; Lent v. Tillson, 140 U. S. 316, 11 Sup. Ct 825, 35 L. Ed. 419; State v. Cummings, 36 Mo. 278; Murray v. Buell, 74 Wis. 14, 41 N. W. 1010; Perry v. Salt Lake City Council, 7 Utah, 143, 25 Pac 998, 11 L. R. A. 446. When applied to public functionaries, discre tion means a power or right conferred upon them by law of acting officially in certain cir cumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. This dis cretion 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 tri bunal. Judges v. People, 18 Wend. (N. Y.) 79, 99. Lord Coke defines judicial discretion to be "discernere per legem quid sit justum," to see what would be just according to the laws in the premises. It does not mean a wild self-will fulness, which may prompt to any and every DISCREPANCY.

act; but this judicial discretion is guided by the law, (see what the law declares upon a cer tain statement of facts, and then decide in ac cordance with the lawj so as to do substantial equity and justice. Faber v. Bruner, 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 inference," in the language of the Code, and an appeal will lie. Lovinier v. Pearce, 70 N. a 17L 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. Towle v. State, 3 Fla. 214. —Judicial discretion, legal discretion. These terms are applied to the discretionary action of a judge or court, and mean discretion as above denned, that is, discretion bounded by the rules and principles of law, and not arbi trary, capricious, or unrestrained. 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. 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." Civ. Code La. art 3045, et seq. In Scotch law. The ranking of the prop er order in which heirs are liable to satisfy 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." Cushman v. Insurance Co., 70 N. Y. 77; Insurance Co. v. Yung, 113 Ind. 159, 15 N. EL 220, 3 Am. St Rep. 630; Insurance Co. v. Simpson, 88 Tex. 333, 31 S. W. 501, 28 L. R. A. 765, 53 Am. St Rep. 757; De laney v. Modern Ace Club, 121 Iowa, 528, 97 N. W. 91, 63 L. R. A. 603. In English law. An enrolled assurance barring an en tail, pursuant to 3 & 4 Wm. IV. c 74. To deprive of the rights and privileges of a free citizen; to deprive of chartered rights and immunities; to deprive of any franchise, as of the right of voting in elections, etc Webster. DISCRETIONARY TRUSTS. DISCUSSION. In the civil law. DISENTAILING DEED. DISFRANCHISE.