Samuel Freeman Miller

“ As regards the construction of the statute under consideration, which is the second question, while it is not clear that the language of the statute, that 'neither party shall have but one new trial in any case as of right without showing cause,' gives to each party at least one new trial if he demands it, we are opinion, one reflection, that such was the intention of the framers of the Code. ”

“ We are of opinion that when an action of ejectment is tried in a circuit court of the United States according to the statutory mode of proceeding, that court is governed by the provisions concerning new trials as it is by the other provisions of the state statute. There is no reason why the federal court should disregard one of the rules by which the state legislature has guarded the transfer of the possession and title to real estate within its jurisdiction. ”

“ Hence, those states which, by abolishing the fictions of the action at the common law, and substituting a direct suit between the parties actually claiming under conflicting titles, which, according to the nature of this new proceeding, would end in a judgment concluding both parties, have found it necessary to provide for new trials to such extent as each state legislature has thought sound policy to require. ”