dissenting. The right of appeal is a substantial right. Its foreclosure, for causes beyond the control of the party seeking appellate review, has afforded adequate justification to this Court for granting relief by way of a new trial. Nelson v. Marshall, 77 Vt. 44, 48, 58 A. 793; Reynolds v. Romano, 96 Vt. 222, 224, 118 A. 810; Walsh v. Cole, 97 Vt. 459, 460, 123 A. 850; Falzarano v. Demasso, 98 Vt. 209, 214, 126 A. 394; Hodge & Mattheis v. Vermont Stone Products Corp., 113 Vt. 491, 492, 37 A.2d 183.
In this instance the respondent’s notice of appeal, although mailed in due time, was misdirected by counsel to the clerk of the general term of the Supreme Court rather than the clerk of the Supreme Court for Windham County. The intervention of the New Year week-end *67delayed discovery of this misadventure until after the appeal had become irretrievably lost by expiration of the time for filing the notice. State v. Brown, 121 Vt. 459, 160 A.2d 879, 881. I regard this combination of circumstances as factors beyond the respondent’s control.
To be sure the mistake occurred through a misunderstanding on the part of respondent’s counsel and the majority assign the error to the petitioner. But I would not deny the petition for this reason for it appears to me that the mistake was excusable.
This was one of the early appeals following the adoption of the new rules of procedure enacted by the General Assembly in 1959. The provisions of 12 V.S.A. §§2382 and 2383 are entirely new and discarded the familiar and accustomed method for bringing exceptions to this Court for review. The identity of the several clerks of the Supreme Court remained unchanged, nevertheless loose reference to this official “has tended to create something close to a pitfall for the unwary.” State v. Brown, supra, 121 Vt. 459, 160 A.2d at 882.
In an earlier day when appellate procedure was similarly unsettled, this Court deemed it just to excuse a procedural mistake of counsel that had deprived a respondent of his right to appeal a misdemeanor conviction. Webb v. State, 90 Vt. 65, 68, 96 A. 599. Mistake of counsel in matters of law and procedure presented no obstacle to the granting of new trials in Dow v. Town of Hinesburgh and Weed, 1 Aik. 35, 38; Stanton v. Bannister, 2 Vt. 464, 470; Starkweather v. Loomis, 2 Vt. 573, 574; State v. Williams, 27 Vt. 724, 727. See also MacDonald v. Orton, 99 Vt. 425, 432, 134 A. 599.
I agree with the majority to the extent that there is no demonstration that the result reached at the trial was against good conscience nor is there any assurance, to the point of moral certainty, that a new trial will yield a different result. Conversely, the finding of the federal jury, by special verdict in the civil action arising from the fire, that there was no arson is not to be ignored in a discretionary ruling. The fact that the jury in the civil proceedings returned a different verdict after hearing expert testimony that was not presented in the criminal case carries some appeal to judicial discretion. What effect, if any, such evidence would have on a retrial is at best a matter of forecast, hardly capable of prediction “to a moral certainty” within the doctrine of Beckwith v. Town of Middlesex, 20 Vt. 593, 594, quoted in the majority opinion.
*68Up to now, this Court has not seen fit to confine the boundaries of its power to grant a new trial to this inflexible standard. “To preserve intact the due administration of justice a broader principle may sometimes be successfully invoked.” Haselton, J. in Nelson v. Marshall, supra, 77 Vt. 44 at 47, 58 A. 793; Walden v. Clark, 50 Vt. 383, 385; In re Ketchum, 92 Vt. 280, 287, 102 A. 1032.
Since this conviction has been withheld from appellate review through no want of diligence on the part of the petitioner and for a procedural mistake which I consider excusable, it is my judgment that the petition for a new trial should prevail.