DIGNITIES. English law. Titles of honor.
2. They are considered as incorporeal hereditaments.
3. The genius of our government forbids their admission into the
DILAPIDATION. Literally, this signifies the injury done to a building
by taking stones from it; but in its figurative, which is also its technical
sense, it means the waste committed or permitted upon a building.
DILATORY. That which is intended for delay. It is a maxim, that delays
in law are odious, dilationes in lege sunt odiosae. Plowd. 75.
DILATORY DEFENCE. chancery practice. A dilatory defence is one, the
object of which is to dismiss, suspend, or obstruct the suit, without touching
the merits, until the impediment or obstacle insisted on shall be removed.
2. These defences are of four kinds: 1. To the jurisdiction of the court. 2.
To the person of the plaintiff or defendant. 3. To the form of proceedings, as
that the suit is irregularly brought, or it is defective in its appropriate
allegation of the parties; and, 4. To the propriety of maintaining the suit
itself, because of the pendancy of another suit for the same controversy.
Montag. Eq. Pl. 88; Story Eq. Pl. §434. Vide Defence: Plea, dilatory.
DILATORY PLEAS. Those which delay the plaintiff's remedy, by
questioning, not the cause of action, but the propriety of the suit, or the mode
in which the remedy is sought. Vide Plea, dilatory.
DILIGENCE, contracts. The doing things in proper time.
2. It may be divided into three degrees, namely: ordinary diligence,
extraordinary diligence, and slight diligence. It is the reverse of negligence.
(q. v.) Under that article is shown what degree of negligence, or want of
diligence, will make a party to a contract responsible to the other. Vide Story,
Bailm. Index h. t.; Ayl. Pand. 113 1 Miles, Rep. 40.
DILIGENCE. In Scotland, there are certain forms of law, whereby a
creditor endeavors to make good his payment, either by affecting the person of
his debtor, or by securing the subjects belonging to him from alienation, or by
carrying the property of these subjects to himself. They are either real or
2. Real diligence is that which is proper to heritable or real rights,. and
of this kind there are two sorts: 1. Inhibitions. 2. Adjudication, which the law
has substituted in the place of apprising.
3. Personal diligence is that by which the person of the debtor may be
secured, or his personal estate affected. Ersk. Pr. L. Scotl. B. 2, t. 11, s.
DIME, money. A silver coin of the United States, of the value of
one-tenth part of a dollar or ten cents.
2. It weighs forty-one and a quarter grains. Of one thousand parts, nine
hundred are of pure silver and one hundred of alloy. Act of January 18, 1837, s.
8 and 9, 4 Sharsw. cont. of Story's L. U. S. 2523-4.
DIMINUTION OF THE RECORD, practice. This phrase signifies that the
record from an inferior court, sent up to a superior, is incomplete. When this
is the case, the parties may suggest a diminution of the record, and pray a writ
of/ certiorari to the justices of the court below to certify the whole record.
Tidd's Pr. 1109; 1 S. & R. 472; Co. Ent. 232; 8 Vin. Ab. 552; 1 Lilly's Ab.
245; 1 Nels. Ab. 658; Cro. Jac. 597; Cro. Car. 91; Minor, R. 20; 4 Dev. R. 575;
1 Dey. & Bat. 382; 1 Munf. R. 119. Vide Certiorari. DIOCESE, eccl. law. The
district over which a bishop exercises his spiritual functions. 1 B1. Com.
DIPLOMA. An instrument of writing, executed by, a corporation or
society, certifying that a certain person therein named is entitled to a certain
distinction therein mentioned.
2. It is usually, granted by learned institutions to their members, or to
persons who have studied in them.
3. Proof of the seal of a medical institution and of the signatures of its
officers thereto affixed, by comparison with the seal and signatures attached to
a diploma received by the witness from the same institution, has been held to be
competent evidence of the genuineness of the instrument, although the witness
never saw the officers write their names. 25 Wend. R. 469.
4. This word, which is also written duploma, in the civil law, signifies
letters issued by a prince. They are so called, it is supposed, a duplicatis
tabellis, to which Ovid is thought to allude, 1 Amor. 12, 2, 27, when he says,
Tunc ego vos duplices rebus pro nomine sensi Sueton in Augustum, c. 26. Seals
also were called Diplomata. Vicat ad verb.
DIPLOMACY., The science which treats of the relations and interests of
nations with nations.
DIPLOMATIC AGENTS. This name has been given to public officers, who
have been commissioned, according to law, to superintend and transact the
affairs of the government which has employed them, in a foreign country. Vattel,
liv. 4, c. 5.
2. These agents are of divers orders, and are known by different
denominations. Those of the first order are almost the perfect representatives
of the government by which they are commissioned; they are legates, nuncios,
internuncios, ambassadors, ministers, plenipotentiaries. Those of the second
order do not so fully represent their government; they are envoys, residents,
ministers, charges d'affaires, and consuls. Vide these several words.
DIPLOMATICS. The art of judging of ancient charters, public documents
or diplomas, and discriminating the true from the false. Encyc. Lond. h. t.
DIRECT. Straight forward; not collateral.
2. The direct line of descents for example, is formed by a series of degrees
between persons who descend one from another. Civ. Code of Lo. art. 886.
DIRECTION. The order and government of an institution; the persons who
compose the board of directors are jointly called the direction. Direction, in
another sense, is nearly synonymous with instruction. (q. v.)
DIRECTION, practice. That part of a bill in chancery which contains
the address of the bill to the court; this must of course, contain the
appropriate and technical description of the court.
DIRECTOR OF THE MINT. An officer whose duties are prescribed by the
Act of Congress of January 18, 18 37, 4 Sharsw. Cont. of Story L. U. S. 2524, as
follows: The director shall have the control and management of the mint, the
superintendence of the officers and persons employed therein, and the general
regulation and supervision of the business of the several branches. And in the
month of January of every year he shall make report to the president of the
United States of the operation of the mint and its branches for the year
preceding. And also to the secretary of the treasury, from time to time, as said
secretary shall require, setting forth all the operations of the mint subsequent
to the last report made upon the subject.
2. The director is required to appoint, with the approbation of the
president, assistants to the assayer, melter and refiner, chief coiner and
engraver, and clerks to the director and treasurer, whenever, on representation
made by the director to the president, it shall be the opinion of the president
that such assistants or clerks are necessary. And bonds may be required from
such assistants and clerks in such sums as the director shall determine, with
the approbation of the secretary of the treasury. The salary of the director of
the mint, for his services, including travelling expenses incurred in visiting
the different branches, and all other charges whatever, is three thousand five
hundred dollars. DIRECTORS. Persons appointed or elected according to law,
authorized to manage and direct the affairs of a corporation or company. The
whole of the directors collectively form, the board of directors.
2. They are generally invested with certain powers by the acts of the
legislature, to which they owe their existence.
3. In modern corporations, created by statutes, it is generally contemplated
by the charter, that the business of the corporation shall be transacted
exclusively by the directors. 2 Caines' R. 381. And the acts of such a board,
evidenced by a legal vote, are as completely binding upon the corporation, and
as complete authority to their agents, as the most solemn acts done under the
corporate seal. 8 Wheat. R. 357, 8.
4. To make a legal board of directors, they must meet at a time when, and a
place where, every other director has the opportunity of attending to consult
and be consuited with; and there must be a sufficient number present to
constitute a quorum. 3 L. R. 574; 13 L. R. 527; 6 L. R. 759. See 11 Mass. 288; 5
Litt. R. 45; 12 S. & R. 256; 1 Pet. S. C. R. 46. Vide Dane's Ab. h. t.
5. Directors of a corporation are trustees, and as such are required to use
due diligence and attention to its concerns, and are bound to a faithful
discharge of the duty which the situation imposes. They are liable to the
stockhoders whenever there has been gross negligence or fraud; but not for
unintentional errors. 1 Edw. Ch. R. 513; 8 N. S. 80; 3. L. R. 576. See 4 Mann.
& Gr. 552.
DIRECTORY. That which points out a thing or course of proceeding; for
example, a directory law.
DIRIMANT IMPEDIMENTS, canon law. Those bars to a marriage, which, if
consummated, render it null. They differ from prohibitive impediments. (q.
DISABILITY. The want of legal capacity to do a thing.
2. Persons may be under disability, 1. To make contracts. 2. To bring
3. - 1. Those who want understanding; as idiots, lunatics, drunkards, and
infants or freedom to exercise their will, as married women, and persons in
duress; or who, in consequence of their situation, are forbidden by the policy
of the law to enter into contracts, as trustees, executors, administrators, or
guardians, are under disabilities to make contracts. See Pa7-ties;
4. - 2. The disabilities to sue are, 1. Alienage, when the alien is an enemy.
Bac. Ab. Abatement, B 3; Id. Alien, E: Com. Dig. Abatement , K; Co. Litt. 129.
2. Coverture; unless as co-plaintiff with her hushand, a married woman cannot
sue. 3. Infancy; unless he appears by guardian or prochein ami. Co. Litt. 135,
b; 2 Saund. 117, f, n. 1 Bac. Ab. Infancy, K 2 Conn. 357; 7 John. 373; Gould,
Pl. c. 5, §54. 4. That no such person as that named has any existence, is not,
or never was, in rerum natura. Com. Dig. Abatement, E 16, 17; 1 Chit. Pl. 435;
Gould on Pl. c. 5, §58; Lawes' Pl. 104; 19 John. 308. By the law of England
there are other disabilities; these are, 1. Outlawry. 2. Attainder. 3.
Praemunire. 4. Popish recusancy. 5. Monachism.
5. In the acts of limitation it is provided that persons lying under certain
disabilities, such as being non compos, an infant, in prison, or under
coverture, shall have the right to bring actions after the disability shall have
6. In the construction of this saving in the acts, it has been decided that
two disabilities shall not be joined when they occur in different persons; as,
if a right of entry accrue to a feme covert, and during the coverture she die,
and the right descends to her infant son. But the rule is otherwise when there
are several disabilities in the same person; as, if the right accrues to an
infant, and before he has attained his full age, he becomes non compos mentis;
in this case he may establish his right after the removal of the last
disability. 2 Prest. Abs. of Tit. 341 Shep. To. 31; 3 Tho. Co. Litt. pl. 18,
note L; 2 H. Bl. 584; 5 Whart. R. 377. Vide Incapacity.
DISAFFIRMANCE. The act by which a person who has entered into a
voidable contract; as, for example, an infant, does disagree to such contract,
and declares he will not abide by it.
2. Disaffirmance is express or implied. The former, when the declaration is
made in terms that the party will not abide by the contract. The latter, when he
does an act which plainly manifests his determination not to abide by it; as,
where an infant made a deed for his land, and, on coming of age, be made a deed
for the same land to another. 2 Dev. & Bat. 320; 10 Pet. 58; 13 Mass. 371,
TO DISAVOW. To deny the authority by which an agent pretends to have
acted as when he has exceeded the bounds of his authority.
2. It is the duty of the principal to fulfil the contracts which have been
entered into by his authorized agent; and when an agent has exceeded his
authority, he ought promptly to disavow such act, so that the other party may
have his remedy against the agent. See Agent; Principal.
DISBURSEMENT. Literally, to take money out of a purse. Figuratively,
to pay out money; to expend money; and some times it signifies to advance
2. A master of a ship makes dishursements, whether with his own money or that
of the owner, when he defrays expenses for the ship.
3. An executor, guardian, trustee, or other accountant, is said to have made
dishursements when he expended money on account of the estate which he holds.
These, when properly made, are always allowed in the settlement of the
DISCHARGE, practice. The act by which a person in confinement, under
some legal process, or held on an accusation of some crime or misdemeauor, is
set at liberty; the writing containing the order for his being so set at
liberty, is also called a discharge.
2. The discharge of a defendant, in prison under a ca. sa., when made by the
plaintiff, has the operation of satisfying the debt, the plaintiff having no
other remedy. 4 T. R. 526. But when the discharge is in consequence of the
insolvent laws, or the defendant dies in prison, the debt is not satisfied. In
the first place the plaintiff has a remedy against the property of the
defendant, acquired after his discharge, and, in the last case, against the
executors or administrators of the debtor. Bac. Ab. Execution, D; Bingh. on
DISCHARGE OF A CONTRACT. The act of making a contract or agreement
2. Contracts may be discharged by, 1. Payment. 2. Accord and satisfaction. 8
Com. Dig. 917; 1 Nels. Abr. 18; 1 Lilly's Reg. 10, 16; Hall's Dig. 7 1 Poth. Ob.
345. 3. Release. 8 Com. Dig. 906; 3 Nels. Ab. 69; 18 Vin. Ab. 294; 1 Vin. Abr.
192; 2 Saund. 48, a; Gow. on Partn. 225, 230; 15 Serg. & Rawle, 441; 1 Poth
Ob. 897. 4. Set off. 8 Vin. Ab. 556, Discount; Hall's Dig. 226, 496; 7 Com. Dig.
335, Pleader, 2 G 17; 1 Poth. Ob. 408. 5. The rescission of the contracts. 1
Com. Dig. 289, note x; 8 Com. Dig. 349; Chit. on Contr. 276. 6. Extinguishment.
7 Vin: Abr. 367; 14 Serg. & Rawle, 209, 290; 8 Com. Dig. 394; 2 Nels. Abr.
818; 18 Vin. Abr. 493 to 515; 11 Vin. Abr. 461. 7. Confusion, where the duty to
pay and the right to receive unite in the same person. 8 Serg. & Rawle,
24-30 1 Poth. 425. 8. Extinction, or the loss of the subject matter of the
contract. Bac. Abr. 48 8 Com. Dig. *349; 1 Poth. Ob. 429. 9. Defeasance. 2
Saund. 47, n. note 1. 10. The inability of one of the parties to fulfil his
part. Hall's Dig. 40. 11. The death of the contractor, as where he undertook to
teach an apprentice. 12. Bankruptcy. 13. By the act of limitations. 14. By lapse
of time. Angell on Adv. Enjoym. passim; 15 Vin. Abr. 52, 99; 2 Saund. 63, n. b;
Id. 66, n. 8; Id. 67, n. 10; Gow on Partn. 235; 1, Poth. 443, 449. 15. By
neglecting to give notice to the, person charged. Chit. on Bills, 245. 16. By
releasing one of two partners. See Receipt. 17. By neglecting to sue the
principal at the request of the surety, the latter is discharged. 8 Serg. &
Rawle, 110. 18. By the discharge of a defendant, who has been arrested under a
capias ad satisfaciendum. 8 Cowen, R. 171. 19. By a certificate and discharge
under the bankrupt laws. Act of Congress of August, 1841.
DISCHARGE OF A JURY, practice. The dismissal of a jury who had been
charged with the trial of a cause.
2. Questions frequently arise, whether if the court discharge a jury before
they render a verdict, in a criminal case, the prisoner can again be tried. In
cases affecting life or members, the general rule is that when a jury have been
sworn and charged, they cannot be discharged by the court, or any other, but
ought to give a verdict. But to this rule there are many exceptions; for
example, when the jury are discharged at the request or with the consent of the
prisoner and for his benefit, when ill practices have been used; when the
prisoner becomes insane, or becomes suddenly ill, so that he cannot defend
himself, or instruct others in his defence; when a juror or witness is taken
suddenly ill; when a juror has absented himself, or, on account of his
intoxication, is incapable to perform his duties as a juror. These and many
similar cases, which may be readily imagined, render the discharge of the jury a
matter of necessity, and; under such very extraordinary and striking
circumstances, it is impossible to proceed with the trial, with justice to the
prisoner or to the state.
3. The exception to the rule, then, is grounded on necessity, and not merely
because the jury cannot agree. 6 Serg. & Rawle, 577; 3 Rawle's Rep. 501. In
all these cases the court must exercise a just discretion in deciding what is
and what is not a case of necessity. This is the law as to the exceptions in
Pennsylvania. In other states, and some of the courts of the United States, it
has been ruled that the authority of the court to discharge the jury rests in
the sound discretion of the court. 4 Wash. C. C. R. 409; 18 Johns. 187; 2 Johns.
Cas. 301; 2 Gall. 364; 9 Mass. 494; 1 Johns. Rep. 66; 2 Johns. Cas. 275 2
Gallis. 364; 13 Wend. 55; Mart. & Yerg. 278; 3 Rawle, 498; 2 Dev. & Bat.
162; 6 S. & R. 577; 2 Misso. 166; 9 Leigh, 613; 10 Yerg. 535; 3 Humph. 70.
Vide 4 Taunt. 309.
4. A distinction has been made between capital cases and other criminal
cases, not capital. In cases of misdemeanors and in civil cases, the right to
discharge rests in the sound discretion of the court, which is to be exercised
with great caution. 9 Mass. 494; 3 Dev. & Batt. 115. In Pennsylvania this
point seems not to be settled. 6 Serg. & Rawle, 599. The reader is referred
to the word Jeopardy, and Story on the Const. §1781; 9 Wheat. R. 579; Rawle on
the Const. 132, 133; 1 Chit. Cr. Law, 629; 1 Dev. 491; 4 Ala. R. 173; 2 McLean,
114. See Afforce.
DISCHARGED. Released, or liberated from custody. It is not equivalent
to acquitted in a declaration for a malicious prosecution. 2 Yeates, 475 2 Term
Rep. 231; 1 Strange, 114; Doug. 205 3 Leon. 100.
DISCLAIMER. This word signifies. to abandon, to renounce; also the act
by which the renunciation is made. For example, a disclaimer is the act by which
a patentee renounces a part of his title of invention,
2. In real actions, a disclaimer of the tenancy or title is frequently added
to the plea of non tenure. Litt. §391. If the action be one in which the
demandant cannot recover damages, as formedon in the discender, the demandant or
plaintiff was bound to pray judgment, &c., and enter, for thereby, he has
the effect of his suit, et frustra fit per plura quod fieri potest per pauciora.
But, if the demandant can recover damages and is unwilling to waive them, he
should answer the disclaimer by averring that the defendant is tenant of the
land, or claims to be such as the writ supposes, and proceed to try the
question, otherwise he would lose his damages. The same course may be pursued in
the action of ejectment, although in Pennsylvania, the formality of such a
replication to the disclaimer is dispensed with, and the fact is tried without
it. 5 Watts, 70; 3 Barr, 367. Yet, if the plaintiff is willing to waive his
claim for damages, there is no reason why he may not ask for judgment upon the
disclaimer without trial, for thereby he has the effect of his suit. Et frustra
fit per plura, &c.
DISCLAIMER, chancery pleading. The renunciation of the defendant to
all claims to the subject of the demand made by the plaintiff's bill.
2. A disclaimer is distinct in substance from an answer, though sometimes
confounded with it, but it seldom can be put in without an answer for if the
defendant has been made a party by mistake, having had an interest which be has
parted with, the plaintiff may require an answer sufficient to ascertain whether
that is the fact or not. Mitf. Pl. 11, 14, 253; Coop. Eq. Pl. 309; Story, Eq.
Pl. c. 17, §838 to 844; 4 Bouv. Inst. n. 4211-14.
DISCLAIMER, estates. The act of a party by which be refuses to accept
of an estate which has been conveyed to him. Vide Assent; Dissent.
2. It is said, that a disclaimer of a freehold estate must be in a court of
record, because a freehold shall not be divested by bare words, in pais. Cruise,
Dig. tit. 32, c. 2 6, s. 1, 2.
3. A disclaimer of tenancy is the act of a person in possession, who denies
holding the estate from the person claiming to be the owner of it. 2 Nev. &
M. 672. Vide 8 Vin.. Ab. 501; Coote, L. & T. 348, 375; F. N. B. 179 k; Bull.
N. P. 96; 16 East, R. 99; 1 Man. & Gran. 135; S. C. 39 Eng. C. L. Rep. 380,
385; 10 B. & Cr. 816; ow, N. P. Cas. 180; 2 Nov. & Man. 673; 1 C. M.
& R. 398 Co. Litt. 102, a.
DISCONTINUANCE, pleading. A chasm or interruption in the pleading.
2. It is a rule, that every pleading, must be an answer to the whole of what
is adversly alleged. Com. Dig. Pleader, E 1, ri 4; 1 Saund. 28, n. 3; 4 Rep. 62,
a. If, therefore, in an action of trespass for breaking a close, and cutting
three hundred trees, the defendant pleads as to cutting all but two hundred
trees, some matter of justifica- tion or title, and as to the two hundred trees
says nothing, the plaintiff is entitled to sign judgment, as by nil dicit
against him, in respect of the two hundred trees, and to demur, or reply to the
plea, as to the remainder of the trespasses. On the other hand, if he demurs or
replies to the plea, without signing, judgment for the part not answered, the
whole action is said to be discontinued. For the plea, if taken by the plaintiff
as an answer to the, whole action, it being, in fact, a partial answer only, is,
in contemplation of law, a mere nullity, and a discontinuance takes place. And
such discontinuance will amount to error on the record; such error is cured,
however, after verdict, by the statute of Jeo fails, 32 H. VIII. c. 80; and
after judgment by nil dicit, confession, or non sum informatus, by stat. 4 Ann.
c. 16. It is to be observed, that as to the plaintiff's course of proceeding,
there is a distinction between a case like this, where the defendant does not
profess to answer the whole, and a case where, by the commencement of his plea,
he professes to do so, but, in fact, gives a defective and partial answer,
applying to part only. The latter case amounts merely to insufficient pleading,
and the plaintiff's course, therefore, is not to sign judgment for the part
defectively answered, but to demur to the whole plea. 1 Saund. 28, n.
3. It is to be observed, also, that where the part of pleading to which no
answer is given, is immaterial, or such as requires no separate or specific
answer for example, if it be mere matter of allegation, the rule does not in
that case apply. Id. See Com. Dig. Pleader, W; Bac. Abr. Pleas, P.
DISCONTINUANCE, estates. An alienation made or suffered by the tenant
in tail, or other tenant seised in autre droit, by which the issue in, tail, or
heir or successor, or those in reversion or remainder, are driven to their
action, and cannot enter.
2. The term discontinuance is used to distinguish those cases where the party
whose freehold is ousted, can restore it only by action, from those in which he
ma restore it by entry. Co. Litt. 325 a 3 Bl. Com. 171; Ad. Ej. 35 to 41; Com.
Dig. h. t.; Bac. Ab. h. t.; Vin. Ab. h. t.; Cruise's Dig. Index, b.. t..5 2
Saund. Index, h. t.
DISCONTINUANCE, practice. This takes place when a plaintiff leaves a
chasm in the proceedings of his cause, as by not continuing the process
regularly from day to day, and time to time, as he ought. 3 Bl. Com. 296. See
Continuance. A discontinuance, also, is an entry upon the record that the
plaintiff discontinues his action.
2. The plaintiff cannot discontinue his action after a demurrer joined and
entered, or after a verdict or a writ of inquiry without leave of court. Cro.
Jac. 35 1, Lilly's Abr. 473; 6 Watts & Serg. 1417. The plaintiff is, on
discontinuance, generally liable for costs. But in some cases, he is not so
liable. See 3 Johns. R. 249; 1 Caines' R. 116; 1 Johns. R. 143; 6 Johns. R. 333;
18 Johns. R. 252; 2 Caines' Rep. 380; Com. Dig. Pleader, W 5; Bac. Abr. Pleas'
DISCOUNT, practice. A set off, or defalcation in an action. Vin. Ab.
DISCOUNT, contracts. An allowance made upon prompt payment in the
purchase of goods; it is also the interest allowed in advancing money upon bills
of exchange, or other negotiable securities due at a future time And to
discount, signifies the act of buying a bill of exchange, or promissory note for
a less sum than that which upon its face, is payable.
2. Among merchants, the term used when a bill of exchange is transferred, is,
that the bill is sold, and not that it is discounted. See Poth. De l'Usure, n.
128 3 Pet. R. 40.
DISCOVERT. Not covert, unmarried. The term is applied to a woman
unmarried, or widow; one not within the bonds of matrimony.
DISCOVERY, intern. law. The act of finding an unknown country.
2. The nations of Europe adopted the principle, that the discovery of any
part of America gave title to the government by whose subjects, or by whose
authority it was made, against all European governments. This title was to be
consummated by possession. 8 Wheat. 543.
DISCOVERY, practice, pleading. The act of disclosing or revealing by a
defendant, in his answer to a bill filed against him in a court of equity. Vide
Bill of Discovery; 8 Vin. Ab. 537; 8 Com. Dig: 515.
DISCOVERY; rights. The patent laws of the United States use this word
as synonymous with invention or improvement of July 4, 1836, s. 6.
TO DISCREDIT, practice, evidence. To deprive one of credit or
2. In general, a party may discredit a witness called by the opposite party,
who testifies against him, by proving that his character is such as not to
entitle him to credit or confidence, or any other fact which shows he is not,
entitled to belief. It is clearly settled, also, that the party voluntarily
calling a witness, cannot afterwards impeach his character for truth and
veracity. 1 Moo. & Rob. 414; 3 B. & Cress. 746; S. C. 10 Eng. Com. Law
R. 220. But if a party calls a witness, who turns out unfavorable, he may call
another to prove the same point. 2 Campb. R. 556 2 Stark. R. 334; S. C. 3 E. C.
L. R. 371 1 Nev & Man. 34; 4 B. & Adolph. 193; S. C. 24 E. C. L. R. 47;
1 Phil. Ev. 229; Rosc. Civ. Ev. 96.
DISCREPANCY. A difference between one thing and another, between one
writing and another; a variance. (q. v.)
2. Discrepancies are material and immaterial. A discrepancy is immaterial
when there is such a difference between a thing alleged, and a thing offered in
evidence, as to show they are not substantially the same; as, when the plaintiff
in his declaration for a malicious arrest averred, that "the plaintiff, in that
action, did not prosecute his said suit, but therein made default," and the
record was, that he obtained a rule to discontinue. 4 M. & M. 2 5 3. An
immaterial discrepancy is one which does not materially affect the cause as,
where a declaration stated that a deed bore date in a certain year of our Lord,
and the deed was simply dated " March 30, 1701." 2 Salk. 658; 19 John. 49 5
Taunt. 707; 2 B. & A. 301; 8 Miss. R. 428; 2 M'Lean, 69; 1 Metc. 59; 21
DISCRETION, practice. When it is said that something is left to the
discretion of a judge, it signifies that he ought to decide according to the
rules of equity, and the nature of circumstances. Louis. Code, art. 3522, No.
13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539.
2. The discretion of a judge is said to be the law of tyrants; it is always
unkown; 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 quae minimum relinquit arbitrio judicis: optimus judex qui minimum
sibi. Bac. Aph; 1 Day's Cas.. 80, ii.; 1 Pow. Mortg. 247, a; 2 Supp. to Ves. Jr.
391; Toull. liv. 3, n. 338; 1 Lill. Ab. 447.
3. There is a species of discretion which is authorized by express law, and,
without which, justice cannot be administered; for example, an old offender, a
man of much intelligence and cunning, whose talents render him dangerous to the
community, induces a young man of weak intellect to commit a larceny in company
with himself; they are both liable to be punished for the offence. The law,
foreseeing such a case, has provided that the punishment should be proportioned,
so as to do justice, and it has left such apportionment to the discretion of the
judge. It is evident that, without such discretion, justice could not be
administered, for one of these parties assuredly deserves a much more severe
punishment than the other.
DISCRETION, crim. law. The ability to know and distinguish between
good and evil; between what is lawful and what is unlawful.
2. The age at which children are said to have discretion, is not very
accurately ascertained. Under seven years, it seems that no circumstances of
mischievous discretion can be admitted to overthrow the strong presumption of
innocence, which is raised by an age so tender. 1 Hale, P. C. 27, 8; 4 Bl. Coin.
23. Between the ages of seven and fourteen, the infant is, prima facie,
destitute of criminal design, but this presumption diminishes as the age
increases, and even during this interval of youth, may be repelled by positive
evidence of vicious intention; for tenderness of years will not excuse a
maturity in crime, the maxim in these cases being, malitia supplet aetatem. At
fourteen, children are said to have acquired legal discretion. 1 Hale, P. C.
DISCRETIONARY TRUSTS. Those which cannot be duly administered without
the application of a certain degree of prudence and judgment; as when a fund is
given to trustees to be distributed in certain charities to be selected by the