Page:Federal Reporter, 1st Series, Volume 8.djvu/687

 WOOLKIDGE V. m'kBNNA. 673 �out of abundant caution most practitioners prefer to serve process on the infant in all cases where it can be done, or to make publication if non-resident, whether there be a regular guardian or not. ihis grows out of the want of uniformity in the special regulations already men- tioned, and the diESciilty of determining whether the given case would fall under those statutes requiring service on the infant personally, or on both guardian and infant. �Having now determined that in this case — and I wish to confine the ruling to those cases where the infant may be bound by service of process alone upon the regular guardian, and leave others to be determined as they arise — the infant defendant would have been bound in the state court, without the service of any process, by the appearance in her behalf of her regular guardian, let us inquire what effect is produced by removal to this court under the peculiar facts of this case. I have shown that in an original case in this court service of process upon a regular guardian, or appearance by him without service upon the infant, would be ineffiectual ; the only substituted process known to the federal statutes being that under section 8 of the act of March 3, 1875, (18 St. 472.) That section, as I under stand it, applies only to suits "commenced in any circuit court of the United States," and does not apply to removed causes, and for the obvious reason that as to these causes the act contem- plates an appearance here voluntarily of the removing defendant, and no process is necessary. But this would altogether defeat the right of an infant defendant who cannot appear voluntarily to remove his case, unless some one can appear for him without process, or we resort to the state process to bring him in, for no federal process can reach him outside of the district where he actually resides. We cannot issue state process from this court, whether it be by writ or publica- tion ; and therefore it seems to me necessary to hold that where there is an infant defendant there can be no removal until, by effectuai process, he has been first brought into the state court and some one there authorized to appear for him in that court. If such person may appear there without process and bind the infant, he may ap- pear here without process and bind him to a like extent; but there must be a preliminary appearance in the state court to supply the want of process there, so that that court should have the infant bound to answer the suit, and he be brought here with that bond upon him ; for we cannot supply it, nor substitute one for it, nor can he under the law voluntarily forego or waive it, and it is absolutely v.8,no.9— 43 ��� �