According to the more rigid rule,• any expression of opinion however deliberate up on a question however fully argued, if not es sential to the disposition that was made of the case, may be regarded as a dictum; but it is, on the other hand, said that it is diffi cult to see why, in a philosophical point of view, the opinion of the court is not so persuasive on all the points which were so involved in the cause that it was the duty of counsel to argue them, and which were delib erately passed over by the court, as if the decision had hung upon but one point ; 1 Abbott, N. Y. Dig. pref. iv. And a text writ er has said that "the line must not be too sharply drawn"; Wells, Res. Adj. & Sta. Dec.
581. The fact that a decision might have been rested upon a different ground, and even a more satisfactory one, does not place the actual decision, on a ground arising, in the category of a dictum; Clark v. Thomas, 4 Heisk. (Tenn.) 419.
But even when the point ruled was not directly and necessarily in issue, there are distinctions drawn as to the relative au thority of judicial expressions of opinion comprehended under the general term dicta, as used in its broadest sense. An expression of opinion upon a point involved in a case, argued by counsel and deliberately passed upon by the court, though not essential to the disposition of the case, if a dictum, should be considered as a judicial dictum. as distinguished from a mere obiter dictum., e. an expression originating alone with the judge writing the opinion, as an argument or illustration; Buchner v. Ry. Co., 60 Wis. 264, 19 N. W. 56. What was, in strictness, a dictum of Mr. Justice McLean has been ex tensively commented on, treated, and in sev eral cases followed, as an authority. The suit was on a bond of a United States offi cer, and the question was as to when a res ignation Wok effect, it being claimed that for default after resignation the surety was not liable. The court held the resignation to be a conditional one, and went on to discuss the right of resignation and the necessity of ac ceptance or power of rejection, reaching the conclusion that an unqualified resignation re quired no acceptance and would have dis charged the surety; U. S. v. Wright, 1 Mc Lean, 509, Fed. Cas. No. 16,775. This case having, been cited to that point it was con tended that it was a mere dictum. After de fining dictum the supreme court of Nevada held "that while technically such, it was not liable to the objections usually urged,—it was the expression of opinion on a point argued, and entitled to far more weight than an or dinary dictum on a point not discussed and remotely connected with the case." State v. Clarke, 3 Nev. 566. The same case was fol lowed in People v. Porter, 6 Cal. 28; State v. Fitts, 49 Ala. 402 ; and is commented on and treated as an authority without being characterized as a. dictum in Edwards v. U. S., 103 U. S. 471, 26 L. Ed. 314 and Reeves v. Ferguson, 31 N. J. L. 107.
So also it has been held, with respect to a court of last resort, that all that is needed to render its decision authoritative is that there was an application of the judicial mind to the precise question adjudged; and that the point was investigated with care and considered in its fullest extent ; Alexander v. Worthington, 5 Md. 488 ; and that when a
question of general interest is involved, and is fully discussed and submitted by counsel, and the court decides the question with a view to settle the law, the decision cannot be considered a dictum.; id.
When a question is involved in the case, though not in the particular phase of it, at the time before the court, the language of the court is not a mere dictum. When a will was offered for probate the question of its validity, so far as regarded charitable uses, was involved, and what was said as to that was not obiter; Jones v. Habersbam, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401; although a point may not have been exhaus tively argued a decision upon it cannot be said to be dictum when it was upon a raised by a demurrer upon which the court distinctly expressed an opinion; Michael v. Morey, 26 Md. 239, 90 Am. Dec. 106.
"Whenever a question fairly arises in the course of a trial, and there is a distinct de cision of that question, the ruling of the court in respect thereto can, in no just sense, be called mere dictum," Union Pac. R. Co. v. Railroad Co., 199 U. S. 160, 166, 26 Sup. Ct. 19, 50 L. Ed. 134; Florida C. R. Co. v. Schut te, 103 U. S. 118, 26 L. Ed. 327; New York Cent. & H. R. R. Co. v. Price, 159 Fed. 330, 332, 86 C. C. A. 502, 16 L. R. A. (N. S.) 1103.
The expressions of courts and judges which fall within the general designation of dicta are accorded more or less weight as they agree with, or run counter to, the cur rent of authority, and, like the adjudications of courts in other jurisdictions, not direct authorities, they are always considered with reference to the judicial reputation and ex perience of their authors. Referring to a case cited in a dictum Lord Mansfield said, "This dictum of Lord Holt's is no formed decisive resolution ; no adjudication; no professed or deliberate determination . . " • then after citing cases contra he continued, "therefore this mere obiter dictum ought not to weigh against the settled direct authority of the cases which have been delib erately and upon argument determined the other way." 2 Burr. 2064. "Dicta of judges upon matters not argued or directly before them, have had more importance attached to them than, in my opinion, they ought to have had ; but such expressions, falling from such a man as Lord Hardwicke, may be safely re lied upon to show that, at that time, the idea of a larger legacy being adeemed by a small er portion was not familiar to his mind. It is the more important to keep this dictum of Lord Hardwicke in mind because another dictum. of that very eminent judge . . • is relied upon in support of the supposed rule." Ld. Ch. Cottenham, in 1 Russ. 27. The doctrine of the courts of France on this subject is stated in 11 Toullier 177, n. 133.
See PRECEDENT.
In French Law. The report of a judgment made by one of the judges who has given it. Pothier, Proc. Civ. pl. 1, c. 5, art. 2.