similar matters of detail appertaining to practice and procedure. Judicial power to determine causes does not exist aside from the law, of which the courts are the creatures and instruments. The judge has no discretion except that which is conferred upon him by the law. That discretion is a legal, not a personal, discretion, and consists in discerning, expounding and carrying out the law as it comes from the law-making power and as it is contained in or modified by prior judicial precedents.1 To permit the courts to mold the law in any particular case as often as the rights of a particular litigant may seem to demand it would involve the whole body of jurisprudence in uncertainty, and substitute the caprice or personal opinion of a fallible judge for those well-considered and long-established legal rules and principles which are recorded in the statute books, and in the reports of judicial decisions, which, being matter of such notoriety, are or may easily be known beforehand by all men. So when it is said that a matter is within the discretion of the court and is not subject to review or re-examination, legal discretion is referred to, operating within the limits of well-recognized legal rules and implying the presence and exercise of fairness and justice by the court. But on the other hand, the abuse of the discretion possessed by the court, particularly if the abuse shall be palpable and gross, is always subject to review. Such a perversion or abuse of judicial discretion occurs when the court departs from the well-trodden path of legal rules and remedies and permits its action to be swayed and guided by personal will or passion, by the promptings of prejudice or of affection, by bias, by partiality, or by the allurements and rewards of corruption.2 1 See the remarks of Marshall, C. J., in Osborn v. United States Bank, 9 Wheat. 866. 2 White v. Leads, 51 Pa. St. 189; People v. N. Y. Cent. R. Co., 29 N. Y. 431; Com. v. Lesher, 17 S. & R. 164; Tilton v. Cofield, 93 U. S. 166; Ex parte Reed, 100 id. 23; United States v. Atherton, 102 U. S. 375. "The private discretion of a judge is 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 often caprice; in the worst it is every vice, folly and passion to which human nature can be liable." Lord Camden, cited by Gibson, C. J., in Commonwealth v. Lesher, 17 S. & R. (Pa.) 164. presumptions from, 356, 357. of witness, evidence to explain, 16. of witness, when a contempt of court, 419, 420. presumption of continuance of, 350. evidence of, guilt presumed from, 124, declarations to explain, 65. (see also ALIBI.) of witness, when suspicious, 538. ABSENT WITNESSES: commissions to procure depositions of, 530-534. testimony of missing witnesses, 167. witness need not be deceased, 167-169. witnesses who have become sick, decrepit or insane, 169. cross-examination at former trial requisite; identity of parties, 169, 170. precise language of witness, how far necessary, 171–173. continuance granted because of - in civil trials, 416-418. in criminal trials, 418, 419. References are to pages. ABSOLUTE CONTRACT: allegation of, not supported by proof of an alternative contract, 40. parol evidence to show it is mortgage, 329, 330. may be shown to be a trust, 312. ABUSIVE LANGUAGE: by witness, striking out, 476. ABUSIVE WITNESS: checking by court, 472. ACCEPTANCE: primary evidence of, 54. ACCEPTANCE OF DEED: presumption of, evidence to rebut, 315. ACCESS: of husband, presumption from, 360. ACCIDENT: relevancy of evidence of prior accident, 19. ACCOMPLICES: their competency for and against one another, 433, 434. competency of, as witnesses, 459. when jointly indicted, 460. when separately indicted, 460. when convicted, 460. admission of, as witnesses, when discretionary, 460, 461. promises of immunity to, 461. claims to immunity by, 461. pardon of, 461. cross-examination of, 461. conviction on evidence of, 462. corroboration of, 462. extent of corroboration required, 338, 463. corroboration, when required by statute, 463. corroboration by confession of accused, 463, 464 presumptions against, 338. confessions of, 136. ACCOUNT BOOKS: as evidence, 78-86. must be regularly kept, 84. ACCOUNTS STATED, 113. ACCUSED: the identification of, 494, 495. cannot be called as a witness against himself, 496. ACCUSED (continued): References are to pages. the credibility of his testimony, 496. his interest, 496. his right to confront the witnesses, 496. presumed innocent, 497. waives his privileges by going on stand, 497. may be questioned as to prior life, 497. limits of cross-examination of, 497. effect of prior conviction, 497. simulation of insanity by, 498. his rights to cross-examine the witnesses, 169, 170, 498. he may be recalled after testifying, 498. he may object to irrelevant questions, 498. his failure to testify, effect of, 499. comments by counsel on, 499. his right to be present at taking the view, 491, 492. his explanation to the jury, 472, 473. ACCUSED AS A WITNESS: in his own behalf, 433. for co-defendant, 433, 434. ACCUSED IN CRIMINAL TRIAL: his right to cross-examine and confront witnesses, 169, 170. ACCUSED PERSONS (see CONFESSIONS): preliminary examination of, 131. ACKNOWLEDGMENT: as proof of handwriting, 187, 188. substantial compliance with statute is required, 187. necessity for, to obtain record, 188. who may take, 188. by de facto officials, 188. before attesting witness, 188. before relative of the grantor, 188. before attorney of the grantor, 188. before grantee, 188. when taken out of jurisdiction of official, 189. venue of, must be stated in, 189. certificate of, 189. official seal on, 190. language of, 190. amendment of, 191. use of, as evidence, 192. impeachment of, 192. extrinsic evidence to supply omissions, 191. as notice to purchasers, 192. |