Opinion of the Court.

tain exceptions named. Those exceptions provide in two cases for a second trial of the action. One is after the first trial and judgment; the party against whom the judgment has been rendered, or his heirs or assigns, is entitled to have the judg ment set aside and a new trial granted within one year from the date of the judgment, upon the payment of all costs in the action. The new trial in such case is a matter of right, upon the mere application of the party. The other is after the second trial and judgment; then a new trial may be granted, upon the application of the losing party, if the court is satisfied that justice would be thereby promoted, and the rights of the parties be more satisfactorily ascertained and established. But only two trials can be granted to the same party.

This absolute right of a party against whom a judgment in ejectment has been rendered in such cases to a second trial, upon his application and payment of costs in the action, is esteemed in Illinois to be a valuable one. The statute which authorizes it is there regarded as conferring a substantial right, in that it increases the security of holders of real property, that in case their title is brought into litigation it will be more fully examined and satisfactorily ascertained and established than by confining the parties to a single trial, as in other controversies except where another trial is ordered for cause. In the courts of that State this right is secured in all cases of ejectment. As it is a valuable one, there would seem to be every reason why it should be enjoyed when the action was commenced in a state court, and for good cause removed to a court of the United States, there being nothing in the practice of the latter court or in the laws of Congress which prevents or impedes its enjoyment. If there existed any such objection in the practice of the Federal courts, or in any law of Congress, as prevents the trial of equitable defences to an action at law which are allowed in some state courts, the second trial in ejectment simply upon the application of the party and the payment of the costs might properly be refused; but there exists, as stated, no such objection. It is not the purpose of the statutes of the United States, which authorize the removal of causes from a state court to a Federal court, to deprive

Opinion of the Court.

either party of any substantial right, but to secure to the parties all such rights which could be claimed in the state courts when capable of enforcement under the settled Federal practice.

The duty of the Federal courts to follow the practice of the state courts in cases like the present one, where the law of the State allows a new trial in actions of ejectment without showing cause, is recognized by this court in Equator Co. v. Hall, 106 U. S. 86, 88. That was an action in the Circuit Court of the United States against a mining company to recover possession of a silver mine in Colorado. The case was, by agreement of parties, submitted to the judge of the court, who found for the defendant and rendered judgment in his favor. Thereupon the plaintiffs paid the costs of the action up to that time, and under the provisions of a section of the Code of Civil Procedure of that State moved for and obtained a new trial without showing any cause. At a subsequent term the case was again tried, and the jury returned a verdict for the plaintiffs, on which judgment was entered. The defendant then, without showing cause, moved for a new trial, which was claimed to be a matter of right under the same section of the code under which the previous new trial had been granted. The judges of the court were divided in opinion on this motion, and certified the question to this court. The section of the Code of Colorado under which the motion was made was as follows:

"Whenever judgment shall be rendered against either party under the provisions of this chapter, it shall be lawful for the party against whom such judgment is rendered, his heirs or assigns, at any time before the first day of the next succeeding term, to pay all costs recovered thereby, and, upon application of the party against whom the same was rendered, his heirs or assigns, the court shall vacate such judg ment and grant a new trial in such case; but neither party shall have but one new trial in any case, as of right, without showing cause. And after such judgment is vacated, the cause shall stand for trial the same as though it had never been tried."

Opinion of the Court.

In disposing of the question this court referred to the fictions in the action of ejectment at common law, and to the inconclusiveness of the results of such actions, and observed that this form of action had been abolished in some of the States, and that in abolishing it with its accompanying evils, and in substituting an action between the real parties, plaintiff and defendant, it was found necessary to provide a rule on the subject of new trials in actions concerning the titles of land. While these provisions, said the court, were not the same in all States, it was believed that almost all of them had made provision for one or more new trials as a matter of right. The court added: "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. Miles v. Caldwell, 2 Wall. 35."

That decision goes beyond the requirement of this case, for that action was commenced in a Federal court, while here it was begun in a state court, and subsequently removed to the Circuit Court of the United States. It is only necessary to hold that in this case the same right to a second trial can be claimed and enforced as if the action had never been thus removed.

Against this view the defendants in error cite section 701 of the Revised Statutes of the United States, which prescribes the power of the Supreme Court in reviewing the judgment of inferior courts as follows:

"The Supreme Court may affirm, modify or reverse any judgment, decree or order of a Circuit Court, or District Court acting as a Circuit Court, or of a District Court in prize causes, lawfully brought before it for review, or may direct such judgment, decree or order to be rendered, or such further proceedings to be had by the inferior court, as the justice of the case may require. The Supreme Court shall not issue execution in

Opinion of the Court.

a cause removed before it from such courts, but shall send a special mandate to the inferior court to award execution thereupon."

They contend that, the Supreme Court having rendered its decision and remanded the case to the court below, with directions to enter the appropriate judgment, the judgment thus entered becomes in substance and effect the judgment, not of the court to which it was thus remanded, but of the Supreme Court, and that it is not within the power of the lower court to change its results or directions in any respect. Undoubtedly, in ordinary cases, a new trial cannot be granted by the court below, except for good cause, and in the exercise of its sound judgment, and it is not within its power, in entering the judgment of the Supreme Court, to award a new trial; and it only remains to carry the judgment into

execution.

But this rule cannot apply to an action of ejectment, where the party is entitled by the law of the State in which the action arose to a new trial without showing cause, and in regard to which the trial court possesses no discretion. The judgment entered in an action of ejectment in such case, by direction of the Supreme Court, stands subject to the same control by the lower court as if thus rendered in the first instance.

The defendants in error also cite in support of their position. the case of Ex parte Dubuque & Pacific Railroad, 1 Wall. 69. At first sight this decision would seem to be an authority for their position, but upon examination it appears that the new trial there depended upon the discretion of the court, and that there was not, as mistakenly stated, any statute at that time in Iowa which gave the party a right to a new trial as a matter of course. It appears from the record in that case, that after the mandate had gone down, and judgment had been entered in obedience to it, affidavits were presented and a motion made for a new trial, which was granted by the court; and that subsequently a mandate was issued by this court commanding the court below to vacate the order. That case, therefore, as correctly stated by counsel, falls within the class where the litigation was ended with the first trial, and its

Syllabus.

decision does not apply to those cases of ejectment where more than one trial is directly allowed by statute.

Our conclusion is, that

The plaintiffs in error were entitled to a new trial, upon their application in the Circuit Court and payment of costs, without showing other cause than that a judgment was entered against them within the year. This conclusion will be certified to the Circuit Court of Appeals, upon which that court will proceed to render the proper judgment in the case pending before it; and it is so ordered.

Nos. 7, 8, 9, Original. Argued November 16, 17, 1891. - Decided February 1, 1892. Section 3894 of the Revised Statutes, as amended by the act of September 19, 1890, 26 Stat. 465, c. 908, which provides that "no letter, postal card or circular concerning any lottery . . . and no list of the drawings at any lottery. . and no lottery ticket or part thereof. . . shall be carried in the mail, or delivered at or through any post-office, or branch thereof, or by any letter-carrier"; and that no newspaper "containing any advertisement of any lottery""shall be carried in the mail, or delivered by any postmaster or letter-carrier"; and that "any person who shall knowingly deposit or cause to be deposited . . . anything to be conveyed or delivered by mail in violation of this section . . . shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year," is a constitutional exercise of the power conferred upon Congress by Art. I, sec. 8 of the Constitution, to establish post-offices and post-roads, and does not abridge "the freedom of speech or of the press," within the meaning of Amendment I to the Constitution. Ex parte Jackson, 96 U. S. 727, affirmed to the points;

(1) That the power vested in Congress to establish post-offices and post-roads embraces the regulation of the entire postal system of the country, and that under it Congress may designate what may be carried in the mail and what excluded;