the court is of opinion that the motion for a rehearing should be denied. At the trial term, if it appears that the newly discovered evidence raises nothing for the consideration of the jury, but a mere question for the court, by which the former trial could not be affected in a manner unjust to the defendant, the presiding judge will determine whether justice requires a new trial of this point only by the court, and make such order as justice requires. No question of mere law is now presented which we can *Page 520 see must necessarily be tried by the court, and the question raised is sent to the trial term. Gamsby v. Columbia, 58 N.H. 60.

Motion for rehearing denied.

SMITH, J., did not sit: the others concurred.