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 decide and act in accordance with what is fair, equitable, and wholesome, as determined upon 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, 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. 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-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. 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 thelaw 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
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