Discrepancy

A difference be-
tween one thing and another, between
one writing and another ; a variance,
(q. v.)

2. — Discrepancies arc material and
immaterial. A discrepancy is mate-
rial when there is such a difference
between a thing alleged, and a thing
offered in evidence, ns to show they
are not substantially the same ; as
when the plaintiff's declaration for a
malicious arrest averred, that “ the
plaintiff, in that action, did not prose-
cute his said suit, but therein made de-
fault,” and the record was, that he ob-
tained a rule to discontinue. 4 M. &

M. 253. An immaterial discrepancy
is one when, though there is a differ-
ence, vet it does 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‘Lcan, 69; 1 Mete. 59; 21 Pick.
480.

DISCRETION, practice. . When it
is said that something is left to the dis-
cretion of a judge, it signifies that he
ought to decide according to the rules
of equity, and the nature of circum-
stances. Louis. Code, art. 3522, No.
13; 2 Inst. 50, 298; 4 Scrg. &
Rawle, 265 ; 3 Burr. 2539.

2. — The discretion of a judge is said
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 lia-
ble. 1 Day’s Cas. 80, n. ; 1 Pow.
Mortg. 247, a; 2 Supp. to Vcs. Jr.
391 ; Toull. liv. 3, n. 338 ; 1 Lill. Ab.
447.

3. — There is a species of discretion
which is authorised by express law,
and, without which, justice cannot be
I administered ; for example, an old of-
| fender, a mnnofmuch intelligence and
cunning, whose talents render him
dangerous to the community, induces a
I young man of a weak intellect to com-
mit a larceny in company with himself,
they are both liable to bo punished for
tlic oftencc. The law, foreseeing such
a case, has provided that the punish-
ment should be proportioned, so as to
do justice, and it has left such appor-
tionment to the discretion of the judge.
It is evident that, without such discre-
tion, justice could not be administered,
for one of these parties assuredly de-
serves a much more severe punish-
ment than tlic other.

Discretion, crim. law, is the ability
to know and distinguish between good
and evil ; between what is lawful ami
what is unlawful.

2. — The ago at which children are
said to have discretion, is not very ac-
curately ascertained. Under seven
years, it seems that no circumstances
of mischievous discretion can be ad-
mitted to overthrow the strong pre-
sumption of innocence, which is raised
by an age so tender. 1 Hale, P. C.
27, 8 ; 4 Bl. Com. 23. Between tho
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 inten-
tion, for a tenderness of years will not
excuse a maturity in crime, the maxim
in these cases being, vialiiia supplet
(ctatcm. At fourteen, children are said
to have acquired legal discretion. 1
Hale, P. C. 25.

DISFRANCHISEMENT, is the act
of depriving a member of a corpora-
tion of his right as such, by expulsion.

2. — It differs from amotion, (q. v.),

468

DIS

DIS

which is applicable to the removal of
an officer from office, leaving him his
rights as a member. Willc. on Corp.
n. 708 ; Ang. & Ames on Corp. 237 ;
and see Expulsion.