
    Allen Gifford & others vs. Abraham Brownell.
    No exception lies to the decision of a judge of the superior court upon a motion to set aside a verdict on the ground of newly discovered evidence, in which questions of fact as well as questions of law are involved.
    Motion by the plaintiffs to set aside a verdict for the defendant on the ground of. newly discovered evidence. Rockwell, J. overruled the motion for the reason, amongst others, that the plaintiffs had not used due diligence in obtaining the evidence before the trial, and to this ruling the plaintiffs excepted.
    
      G. I Reed, for the plaintiffs.
    
      T. M. Stetson, for the defendant.
   By the Court.

This case cannot properly come here by exceptions. The motion for a new trial involved questions of fact as well as of law. If the decision of the motion turned on the use of due diligence by the plaintiffs, it required the court to pass upon a matter which could not be determined without considering the situation, conduct and circumstances of the defendant. These were essential elements of fact which must have been passed on in order to apply the rule of law properly to the question to be decided by the court. Cochrane v. City of Boston, 1 Allen, 480.

Exceptions dismissed.  