
    STEWART v. BOSTON & M. R. R.
    (Circuit Court of Appeals, First Circuit.
    May 1, 1917.)
    No. 1273.
    In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge. Action by Thomas Stewaxt against the Boston & Maine Railroad. Judgment for plaintiff (229 Fed. 862), and defendant brings error.
    Reversed.
    Alexander Murchie, of Concord, N. H. (Hollis & Murchie, of Concord, N. II., on the brief), for plaintiff in error. Edward K. Woodworth, of Concord, N. H. (Streeter, Dernond, Woodworth & Sulloway, of Concord, N. H., on the brief), fpr defendant in error.
    Before DODGE and BINGHAM, Circuit Judges, and BROWN, Distinct Judge.
   PER CURIAM.

Wo think the question in this case is properly before us on the record, and that the District Court erred in declining to exercise lit) •discretion and pass upon the question of fact presented by the affidavits. The judgment of the District Court is reversed, with instructions to that court to consider and pass upon the motion for a new trial in so far as it is based on the ground of newly discovered evidence, and for further proceedings not inconsistent with, this opinion; and the plaintiff: in error recovers his costs in this court,  