
    Town of Derby vs. Amos H. Alling and another.
    In a case reserved by tbe Superior Court for tbe advice of this court, the court upon one of the points gave its advice upon either of two different states of fact, remanding the case for a further finding of the fact upon the point in question. The Superior Court found the further fact and rendered judgment in accordance with the advice given in the event of the fact being so found. Upon a motion in error by the defeated party, it was held that the court would not again consider the question of law so decided.
    Bill in equity for an injunction; brought to the Superior Court in New Haven County, and being the same case before this court at a former term, and reported in 40 Conn. R., 410. In accordance with the advice then given (p. 437,) the Superior Court made a further finding of facts upon a single point in the case and rendered judgment for the petitioners, this court having so advised in the event of the facts being so found. The respondents thereupon filed a motion in error and brought the record before this court.
    
      
      W. B. Wooster, with whom was B. Torrance, for the petitioners,
    on the case coming up for argument, called the attention of the court to the fact that the only question arising on the record was the same one that the court had decided upon the former hearing of the case, and that it was a rule of the court not to consider questions that had in any form been brought before it at a former hearing of the same case; citing Smith v. Lewis, 26 Conn., 110, Nichols v. City of Bridgeport, 27 id., 459, and Fowler v. Bishop, 32 id., 199.
    
      Gr. N. Watrous, with whom was J. W. Ailing, for the respondents,
    contended that, although the court had passed upon the same question, yet as it was only upon a hypothetical state of facts, the opinion given was rather an obiter dictum, not being called for by the case as it then stood, and that at any rate the court ought not to hold an opinion so given as entitled to the same weight, and as binding upon themselves, as an ordinary decision; and that the case was for the first time before the court in such a form as to demand a decision of the point in question.
   The Judges gave their opinions seriatim, all being against a hearing of the case, except Judge Poster, who thought that, in view of the circumstances in which the court had given its opinion in the first instance, and of the fact that the question now came up on a new finding of facts, it would be proper to hear the argument.  