
    Julius Menken et al. v. Samuel Frank et al.
    Obitkk Dictum. Opinion as to rights of parties. Case in judgment.
    
    M. brought an action at law against P. upon a bond given in a proceeding to enjoin a sale under a deed of trust executed by D. for tbe benefit of M. The bond was conditioned for the payment of the debt enjoined, instead of the damages and costs which the obligee might sustain by the wrongful suing out of the injunction, in case it should be dissolved, as provided by the statute. The breach declared on was of the condition to pay the debt upon dissolution of the injunction. This court held that, as such condition was not authorized by law, the obligee could not recover according to the terms thereof, but only to the extent that he would have been entitled to recover if the bond had been conditioned, as provided by the statute, for the payment of damages and costs; and that he could not recover at all in a court of law, but his remedy was in a court of chancery. Thereupon ¡VI. filed a bill in chancery to recover on this bond. The Chancery Court sustained a demurrer to the bill, and on appeal to this court it was contended that the expression of this court declaring M. entitled to recover in chancery was obiter dictum, and not binding authority. Held, that the announcement which is attacked as obiter dictum was necessary to express the opinion of the court as to the rights of the parties and the extent of the power of a court of law in an action upon the bond, and therefore it was not obiter dictum.
    
    Appeal from tbe Chancery Court of Marshall County.
    Hon. A. B. Fly, Chancellor.
    The case is stated in the opinion of the court.
    No brief was filed for the appellants.
    
      E. M. Watson, counsel for the appellants, argued the case orally.
    
      Eeatherston & Harris, for the appellees.
    The appellants hang their hopes of success in this case on the merest obiter dictum, thrown out by this court at the close of its opinion in the action at law brought by the appellants against the appellees on this identical injunction-bond. See Menken et al. v. Frank et al., 57 Miss. 732. In that case the action was brought at law on this same bond, and the breaches assigned were on the condition for the payment of the debt, which condition was unauthorized by statute, illegal, and void. The defence was set up that the condition declared on was voluntary and void — without consideration. That question, and that alone, was presented by the record for the decision of this court. This court decided that the condition declared on was voluntary and void, and that no recovery could be had on it; and it decided, further, that the insertion of this unauthorized condition in the bond did not vitiate the other conditions or provisions in it which were in accord with the requirements of the statute. But the opinion of the court closes with this sentence: “The plaintiffs, being unable to recover on the bond at law, may resort to a court of chancery, and there recover to the same extent they would have been entitled to recover on the bond at law if it had been conditioned as prescribed by the statute.” Now, we insist that the above sentence was foreign to the question before the court, and constitutes no part of its decision. It is simply obiter dictum. When a decision is invoked as authority in another case, the facts of the case in which the decision was rendered are also invoked with it, and the decision becomes the law of that given state of facts, and of no others. The decision must always rest on and be confined to the facts of the case in which it is rendered. The facts of the case now before this court were not before the court when it rendered its decision in the action at law.
    The general language of this court in the opinion referred to must be construed with reference to the facts in that particular case, and when so construed, the sentence closing the opinion will be found to have no force or effect in this case. Bell v. Tombigbee B. Go., 4 Smed. & M. 549 ; Buckingham v. Bailey, 4 Smed. & M. 538 ; Baps v. McRea, 4 Geo. 143 ; Garnett v. Gowles, 10 Geo. 60.
    
      W. 8. Featherston, of counsel for the appellees, made an oral argument. ■ .>
   George, J.,

delivered the opinion of the court.

The controversy involved iu this case was before us at the April term, 1880. See 57 Miss. 737. At that term it was on a writ of error to the Circuit Court of Marshall County to revise a judgment at law sustaining a demurrer to the declaratiou on the injiinction-bond now sued on in equity. This bond contained a stipulation to pay the debt enjoined, instead of to pay the damages and costs which the obligees might sustain by reason of the wrongful suing out of the injunction, in case it should be dissolved. The stipulation in the bond was inapplicable to the debt enjoined, as the injunction was against a sale of property under a deed in trust, and not against proceedings at law. The defendants in error-in that case insisted that the stipulation for the payment of the debt was void, because it was not authorized by law; and the plaintiff in error insisted that the injunction granted was a good consideration for the injunction-bond, and that, as the obligors had voluntarily inserted a stipulation not required by law, in lieu of the required stipulation, which was omitted, and the obligees had accepted the bond, the obligors were bound by it. The court did not agree with either view, but reached the conclusion that, in so far as the stipulation inserted might authorize a recovery in excess of what would have been allowed in case the bond was made in accordance with the statute, as to the excess only it was without consideration, and not enforceable. Under this view, the; obligees had a bond which, in its terms, bound the obligors to pay the whole debt. This recovery, we held, could not be had to that extent, but only to the extent that damages had actually been sustained. In a court of law it was obviously impossible to aver, as a breach of the stipulation to pay the debt, that the obligees had suffered damages in the payment of attorneys’ fees, and in depreciation of the property, and the like. They could only aver that the obligors had failed to pay the debt. It hence followed that in a court ®f law the obligee could not recover to the extent that we had held he was entitled to. We expressed this view then, and, further, that the obligee’s recovery was in equity. It is now suggested that this last opinion was mere obiter dictum, and not binding as authority. We do not agree with this view. The opinion on this point was necessary to express the opinion of the court on the rights of the parties, and was the necessary result of what we had held as to their rights under the bond and t.he extent of the power of a court of law. But if it was a mere obiter dictum, and therefore not authority, we now, upon a reexamination of the question, reach the same conclusion, and therefore direct a reversal of the decree sustaining a demurrer to the bill in equity, with leave to the appellees to answer within sixty days from the filing of the mandate in the clerk’s office in the court below.  