said that, in the District Court, the counsel for the defendant had relied on the argument, that the court could not, on motion, set aside the judgment and execution, and that the argument, now used, had not been advanced there.

The court overruled the motion, on the ground that the District Court had decided correctly on the points made in that court; but recognized the doctrine contended for by Goodwin. But in this case the facts did not appear to the District Court.