By the Court, Allen, J.
Motions for new trials are addressed to the discretion of the court, whether based upon the weight of evidence, surprise, or newly discovered evidence, or the fact that the party has been deprived of his evidence by accident or other like grounds. (Judges of the *293Oneida C. P. v. The People, 18 Wend. 79. People v. Judges of the Dutchess C. P., 20 id. 658.) In modem practice they are liberally granted, in furtherance of justice. The discretion spoken of is said to be a legal discretion, not arbitrary, and yet it is not governed by fixed rules, for then there were no discretion. If in all cases established rules, whether of practice or statutory, controlled the judgment and action of the court in granting or refusing new trials, a new trial would be a matter of right in cases within the rule, and not a favor or in the discretion of the .court. Courts could not then be governed by circumstances and “ act without other control than their own judgment.” Lord Mansfield says that “ discretion, when applied to a court of justice, -means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.” (Rex v. Wilkes, 4 Burr. Rep. 2539.) A definition which leaves but little room for the exercise of judgment, except to apply established rules of law, which is the duty of the judge in every case. Tracy, senator, says: “ It (discretion) means, when applied to public functionaries, a power or right, conferred upon them by law, of acting officially in certain circumstances according to th'e dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. But what is to be understood by a discretion that is governed by fixed legal principles is, I must be allowed to say, something that I have not found satisfactorily explained, and what it is not easy to comprehend.” (18 Wend. 99.) Every fixed rule of law applicable to a case must be enforced at the demand of any suitor. Courts have not the right or legal power to refuse it. When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity and the nature of circumstances, and so as to advance the ends of justice. (Bouv. Law Dic. h. t.) Whenever a clear and well defined rule has been adopted not depending upon circumstances, the court has parted with its discretion *294as a rule of judgment. Discretion may be and is to a very great extent regulated by usage or by principles which courts have learned by experience will, when applied to the great majority of cases, best promote the ends of justice, but it is still left for the courts to determine whether a cqse is “ exactly like in every color, circumstance and feature” to those upon which the usage o.r principle was founded, or in which it has been applied. The action of the courts, upon applications for new trials, consists in a proper exercise of discretion-—not arbitrary but legal—forming and moulding their decisions on each case according to some precedent, or upon its own particular circumstances, so as best to subserve the purposes of substantial justice. (1 Gra. & Wat. on New Trials, 7. Edmondson v. Marshall, 2 T. R. 4.) In practice, cases have arisen from time to time which have admitted the application of well defined principles, and which have furnished precedents for all cases reducible to that class, and to a very great extent courts have been able to classify motions for new trials, and establish appropriate hules for each class. But it has nevef been attempted, and is entirely impracticable with any just view of the object and purpose of this equitable branch of the jurisdiction, to prescribe general rules by which every case must be decided, however much it may differ in circumstances from every other. Hence we find that although courts adhere to the general principles which result from the succession of decisions in all cases alike in circumstances or principle, the books are full of exceptional cases, in which the development of truth and the promotion of substantial justice have been deemed sufficient reasons for granting new trials, although they were not within any former precedent, and consequently not within the operation of any principle or rule established for the guidance of courts in the exercise of their discretion.
As a general rule, new trials will not be granted to admit newly discovered evidence merely cumulative in its character to that which was given upon the trial, or tb impeach the char*295acter or credit of a witness. (3 Gra. & Wat. on New Trials, 1021.) But in actions of ejectment for military bounty lands, where the question was upon the identity of the soldier and patentee, both rules were disregarded owing to the obscurity, and the multifarious frauds, attendant upon those titles. The court was of the opinion that the peculiar circumstances of the cases took them out of the general rule, and that the ends of justice were to be best answered by granting new trials more liberally than was done in ordinary cases. (Jackson v. Kinney, 14 John. 186. Jackson v. Crosby, 12 id. 354. Jackson v. Hooker, 5 Cowen, 207.)
It is very evident that the plaintiff labored under a great disadvantage, if in truth the note is genuine, in not being able to produce it upon the trial. The principal witness had been and then stood indicted for its forgery, and the production of the note upon the trial of that indictment was necessary to a conviction, and its non-production upon the trial of this action, and its alleged loss, might well be used with great force in the impeachment of the witness as well as the note. It is equally clear that the highly respectable witnesses called to disprove the genuineness of the note, could not testify as satisfactorily to themselves, or to the court or jury, as they could have done with the note before them; and had the verdict been for the plaintiff, and the note subsequently brought to light, it would have been almost a matter of course to grant the defendant a new trial, with a view to the elucidation of the truth. In the cross-examination of their witnesses, the plaintiffs could not test the accuracy of their judgment by the note itself, and had not the means to convince them, by a deliberate examination of the signature, and questions properly put relating to the peculiarities of the handwriting, that it was genuine and not forged. The plaintiffs are without fault, and are guilty of no negligence in not producing the note at the trial, although not surprised, in the ordinary sense of that term. In practice, by surprise is understood that situation in which a party is placed without any default *296of Ms own wMch will be injurious to Ms interest. The courts always do every thing in their power to relieve a party from the effects of a surprise when he has been diligent in endeavoring to avoid it. (Bouv. Law Dic. h. t. 1 Clarke’s R. 162. 3 Bouv. Inst. 512.) The plaintiffs were in a situation" in which their interests were liable to suffer without their fault, and after having been diligent in their efforts to avoid it, and when they had no reason to suppose after the search already mack for the note that a further postponement of the trial would benefit them. The event shows that a postponement would have enabled them to produce the note, and for this reason, proceeding to trial under a mistake, they are entitled to relief. (3 Bouv. Inst, supra.) It is in a sense newly discovered evidence, and not of the same character as that given upon the trial. It is a higher grade. Had the plaintiffs been able to produce the note, they would not have been permitted to give secondary evidence of it. It would have been the highest and only competent evidence of its existence. Evidence is not strictly cumulative which is of a different Mnd and character from that adduced on the trial. In Guyot v. Butts, (4 Wend. 579,) the evidence on the trial was circumstantial and the evidence newly discovered was positive - and direct, and a new trial was granted. But the case cited is more important as illustrating the shades of difference which will be regarded as taking a case out of the general rules when a full and fair investigation of truth demand it. The circumstances in that case were that the demand was stale, and the defendants were executors, without the means of discovering and collecting facts which the immediate parties to the transaction had, and the last circumstance chiefly influenced the court in granting the new trial. And see per Woodworth, J., Porter v. Talcott, (1 Cowen, 381, 2,) as to what is and is not considered cumulative evidence when the ends of justice require a retrial of an issue of fact.
Other cases may be cited, showing the liberality of courts *297in granting new trials when it is apparent that without the fault of the party asking it, or any neglect on his part, he has been deprived of some important evidence, either parol or documentary. In an action on a policy, where the defendant by the mistake of his witness failed in producing the necessary document from the admiralty for proving a breach of the convoy act, the court granted a new trial in order to let him into his defense after verdict found for the plaintiff on the merits. (D’Aguilar v. Tobin, 2 Marsh. 265.) See also Richards v. Lewis, (11 C. B. 1035,) where a new trial was granted, although the party had not made inquiry of all the parties in whose possession the necessary document might be supposed to be, on the ground of surprise. The search was held clearly insufficient to authorize secondary evidence to be given, and yet relief was granted. And in Doe v. Erringion, (2 Har. & W. 448,) where a plaintiff had been non-suited on the ground of non-production of a bill of exchange, the court granted a new trial upon an affidavit that the bill had been sent out of the jurisdiction of the court; had been sent for in due time, but not received until too late for the trial; and that it was then in' the plaintiff’s possession. (Atkins v. Owen, 4 Nev. & M. 123.)
The case before us is peculiar in all its circumstances upon which the application is founded. It is not within any of the precedents cited, and is so peculiar that it can scarcely be expected to serve as a precedent for the future. The jury have not had the best means of arriving at the truth, the plaintiffs have been deprived without their fault of a very important piece of evidence differing in character from that which they gave upon the trial, and are now able by this newly discovered evidence to remove a very just ground of suspicion that rested upon their case. The case is important in amount, and in its result involves the character of the principal witness. The granting of a new trial does not reflect upon the merits of the defense, as it does not touch the merits of the action; and if the signature of the defendant *298has been forged, the production of the note will enable him to prove it, .most clearly, while to refuse the new trial would be to exclude the very best evidence of which the case is susceptible and which could .have been produced on the trial.
[Onondaga General Term,
January 1, 1861.
I am of the opinion that the proper development of the truth and the advancement of justice required a new trial to be granted, and that the order should be affirmed.
Bacon, Allen, Mullin and Morgan, Justices.]