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 *535pass 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.