A liberty or privilege allowed to a judge, within the confines of rightaud justice, but independent of narrow and unbending rules of positive law, to decideand act in accordance with what is fair, equitable, and wholesome, as determined uponthe peculiar circumstances of the case, and as discerned by his personal wisdom andexperience, guided by the spirit, principles, and analogies of the law. Osborn v. UnitedStates 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; Murrayv. Buell, 74 Wis. 14, 41 N. W. 1010; Perry v. Salt Lake City Council, 7 Utah, 143, 25Pac. 998, 11 L. R. A. 446.When applied to public functionaries, discretion means a power or right conferredupon them by law of acting officially in certain circumstances, according to the dictatesof their own judgment and conscience, uncontrolled by the judgment or conscience ofothers. This discretion undoubtedly is to some extent regulated by usage, or, if theterm is preferred, by fixed principles. But by this is to be understood nothing more thanthat the same court cannot, consistently with its own dignity, and with its character andduty of administering impartial justice, decide in different ways two cases in everyrespect exactly alike. The question of fact whether the two cases are alike in everycolor, circumstance, and feature is of necessity to be submitted to the judgment ofsome tribunal. Judges v. People, 18 Wend. (N. Y.) 79, 99.Lord Coke defines judicial discretion to be “discernere per legem quid sit justum,” tosee what would be just according to the laws in the premises. It does not mean a wildself-willfulness, which may prompt to any and everyact; but this judicial discretion is guided by the law, (see what the law declares upon acertain statement of facts, and then decide in accordance with the law,) so as to dosubstantial 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 amatter of law or legal inference,” in the language of the Code, and an appeal will lie.Lovinier v. Pea no, 70 N. C. 171.In criminal law and the law of torts, It means the capacity to distinguish betweenwhat is right and wrong, lawful or unlawful, wise or foolish, sufficiently to render oueamenable and responsible for his acts. Towle v. State, 3 Fla. 214.