Page:Federal Reporter, 1st Series, Volume 8.djvu/686

 672 FEDERAL REPORTER. �3258, 3259, 3260, 3267; 1 King's Dig. § 1107. From this state- ment ii will appear how different is the mode of practice in the state courts from that which obtains in the federal courts, as already described ; and, as before pointed out, in these removal causes, where the parties are sui jwris, the state statutes prescribing substituted service are wholly immaterial, because the act of congress requires a,n appearance as a condition of removal; but'they become of vast importance when we come to determine how the infant defendant is io be bound in a case sought to be removed from a jurisdiction where these modes are adopted to that of another, where it is either impossible to bind her for want of her presence within the juris- diction, or there is only a limited mode, in certain cases, where she is without. In the state court this case would f all within the general rule where the infant defendant, upon return of process not found, as ibis was, and affidavit of her non-residence, could have been brought in by substituted process of publication, because the bill alleges that flhe had no regular guardian, a guardian ad litem would have been appointed for her, and she would have been f ully bound ; for while the bill prays a sale of the land, at the election of the assignee, for •distribution, — to decree which, perhaps, a state court would have no jurisdiction, — it is not a bill to sell land of a person under the disa- biiity of infancy where personal service on the infant is required. It is rather in the nature of a personal suit against her to cancel as void the deeds under which she claims, than a proceeding against the land. However this may be, it is not, I think, a case requiring under ithe state statutes personal service on the infant, but it might be served on the regular guardian, if she had one ; and, in whatever view the bill be considered, being non-resident, or out of the state, and having no regular guardian in it, publication was all that was required. If it had been made to appear to the state court as it now does here, or by amended and supplemental bill, that subsequently to the filing of the bill a regular guardian had been appointed in this state, the court could have directed alias process to be served on him, or, without process, allowed him to appear and defend the suit, or else coukl have directed publication and appointed a guardian ad litem, taking care to appoint the regular guardian, unless there should be some reason for appointing another. I am of opinion either of these modes would have been proper in the state courts, and have no doubt whatever that under the state practice the appearance of a reg- ular guardian in a case like this is all that would be required, no process of any kind being necessary if lie voluntarily appears, though ��� �