Prom the statement of this case the questions before us involve the proper exercise of judicial discretion in the court below ; arising on the want of diligence on the part of defendant.
This court has almost invariably refused its interference in such cases, deeming the lower courts fully competent to the proper exercise of such discretion. Lord Coke defines judicial discretion to be, disierncre 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-willfullness, 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. In many of the cases coming before this court, had I been on the bench in the lower court, I should, in all probability, have made quite a different decision. But as the lower courts *387have the best opportunity to know the facts ; as these courts must from necessity see more of the real history of the cases — as they have before them the parties, their counsel, the witnesses and the jurors — as they have the opportunity of seeing the eases under ail the various shades of light; it is but proper to suppose that the exercise of judicial discretion by them will always be as sound and as prudent, as it can be in an appellate court — which sees everything that touches the case, through the same cold, uniform medium, the record alone.
There is nothing in the cáse which strikes us as an improper exercise of that common discretion of courts of justice. Hereda party has been sued for 'cri/m. con. The plaintiff just before he leaves this State as a volunteer for the' war with Mexico, sees the defendant, and they have a conversation, not about this suit, but a friendly talk — from which the defendant supposes that the suit is to be stopped or dismissed. Yet the plaintiff gave him no such information. He takes it for granted. The defendant made no efforts to ascertain whether the suit was dismissed or not — judgment is rendered against him by default— more than a month after this interlocutory judgment elapses, before the writ of inquiry to assess the damages is executed. After the liability is fastened on this defendant, by a heavy verdict, he then comes forward, and moves the court to set aside the judgment by default, and also the assessment of damages, and permit the defendant to plead and defend the action.
The writ of inquiry is ordered to be executed at the same term of the court at which the judgment by default is rendered, in pursuance of the 42nd section of the 8rd article, of the act to regulate Practice at Law, Rev. Code, 1845, p. 815.(a).
During the pendency of the defendant’s motion to set aside the assessment of damages and also the judgment by default, the plaintiff remitted the sum of seven hundred and fifty dollars of the damages, which had been assessed by the jury. This act of the plaintiff’s attorneys is looked upon by the defendant and offered as a reason why the judgment should be set aside. It is urged as evidence of the plaintiff’s unwillingness to meet the case fairly — as evidence that he fears the light — all this may be so — but still all this does not do away with the necessary use of proper diligence on the part of the defendant.
The record in this case, especially the rejected affidavits which it seems were offered by the plaintiff below on the above motion, place the negligence of the defendant in the rank of the grossest character. We feel unwilling to disturb the judgment below, all the difficulty, and hardship of this case, if there be any, arise upon the mere careless neglect of the defendant.
As to the point, about notice of the trial of the writ of inquiry, the want of such notice is attributable to the defendant. He might have found out the day of the execution of the writ if he had made inquiry — but he neither sought to defend the action, nor to attend the assessment of damages. We consider the court having the power to order the writ to be executed at the same term, and its being thus executed, as proper. Upon the whole case then, we find nothing requiring our interference. Judgment is therefore affirmed. .
(a) Robinson v. Lawson, 34 Mo. R. 69.