Discretion

That part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is uncontrolled by fixed rules of law. The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court. "Discretion when applied to a court of justice means sound discretion guided by law."

4 Burr. 529.

Judicial discretion is a mere legal discretion — a discretion in discerning the course presented by law; and what that has discerned it is the duty of, the court to follow. Osborn v. Bank, 9 Wheat. 738, 6 L. Ed. 204. "The discretion is not wilful or arbitrary, but legal [to set aside a judicial sale], and though its exercise be not purely a matter of law, yet it involves a matter of law or legal inference." Lovinier v. Pearce, 70 N. C. 167. "A legal discretion is one that is regulated by well known and established principles of law."

Detroit Tug & Wrecking Co. v. Circuit Judge, 75 Mich. 360, 42 N. W. 968.

Bishop on Mar. & Div. § 830, defines it as "denoting a sort of individual liberty, a sort of liberty in the collective judges and an course of justice bending to the circumstances of the case instead of requiring the to bend to it." "But if the word discretion in this connection [injunction] is used In Its secondary sense, and by it is meant that the chancellor lias the liberty and power of acting, In finally settling property rights, at his discretion, without the restraint of the Legal and equitable rules governing those rights, then I deny Buch power;" Eennessy v. Carmony, 50 N. J. Eq. 616, -i:> Atl. 374. It would tend to clearness and exactness if discretion were used only with reference to those matters where the action of the trial judge is final; Jenkins v. Brown, 21 Wend. (X. Y.) 454. Whether or nut a particular question is one of discretion is in almost every case a matter of set! led law, and the individual court or judge has no power to place it within or without tha I category. II is only when a question arises which, according to piece dent, is treated as such that the Judicial discretion is invoked and its exert ise cannot be reviewed. The discretion of a judge is said by Lord Camden to be the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable. Optima lex qua: ininimum relinquit arbitrio judicis: optimus judex qui minimum sibi.

Bacon, Aph.; - Bell, Suppl. to Yes. 391; Toullier, liv. 3, n. 338; 1 Lilly, Abr. 447.

But the prevailing opinion is that discretion must not he arbitrary, fanciful, and capricious; it must be; legal and regular, governed by rule, not by humor; 4 Burr. 25; Judges of Oneida Common Pleas v. People, 18 Wend. (N. Y.) 99. Many matters relating to the trial such as the order of giving evidence, etc., are properly left mainly or entirely to the discretion of the judge; Utsey v. R. Co., 38 S. C. 399; 17 S. E. 141; Winklemeir v. Dalber, '•'- Mich. 621, 52 N. W. 1036; Coffin v. Hydraulic Co., 136 N. Y. (jr..-,, 32 X. E. 1076; Northern Pac. R. Co. v. Charless, 51 Fed..~>(;2, 2 C. C. A. 3S0; Estis v. Jackson, 111 N. 0. 145, 16 S. E. 7, 32 Am. St. Rep. 784. Decisions upon matters within the absolute discretion of a court are not reviewable in courts of appeal; Harrington v. By. Co., 157 Mass. 579, 32 N. E. 955; Perry v. Shedd, 159 Mass. 200, 34 X. E. 174; Pittsburgh, O. & St. L. R. Co. v. Heck, 102 U. S. 120, 26 L. Ed. 58; but the discretion in granting or refusing a writ of mandamus musl lie exorcised under legal rules, and is reviewable in an appellate court; People v. Common Council of Syracuse, 78 N. Y. 5G. Sucb a writ will v. Van Ness, 15 Fla.:;17: Ex parte Harris, 52 Ala. sT. 23 Am. Be]. 559. A testator may leave it to bla executor to construe tiie pi.,f his will, and to decide doubtful qu ruing his intentions: American Board of i: and the donor of a power may tion to the discretion ol I ». J. vS: S. 61 !. In Criminal Law. The ability to know and distinguish between good and evil, — 1»: what is lawful and what is unlawful. In most modern criminal statutes the amount of punishment is usually left I lion of the court. See Indeterminate