Page:Federal Reporter, 1st Series, Volume 8.djvu/689

 ■wooLEiDOE y. m'kenna. 6-75' �is, no doubt, a correct statement of the law. But it is a suffieierit answer to it to eay that congress, with plenary authority over the subject, in the case of infant defendants who are citizens of other Btates, bas, by necessary implication, conferred. the authority to remove the cause to the proper federal court; and, certainly, the principle cannot be resorted to to defeat the right of an infant de- fendant to a removal in those cases where he must be represented by a guardian ad litem. If the power of representation is to be thus strictly eonfined to that court and suit, it necessarily results that there can be no removal, unless we resort to the general principle that an infant may assert any right or pursue any remedy through a next friend, and in that capacity the guardian ad litem may remove the cause; and, if he refuses, I should not hesitate tosay that any reg- ular guardian, parent, or near relation, or other person upon whom the courts devolve that duty, might act in his behalf, and such act would not be "officions," as bas been argued. It is said circumstances might exist which vrould render it to the interest of the infant to have the case remain in the state court, and an unwise or fraudulent next friend might seek to remove it to his damage. If such a state of cir- cumstances be possible, I have no doubt the federal court, acting on the principle that governs all courts, would protect the minor by remanding the cause, upon the ground that it was deleterious to remove it. �The suit, when properly removed, proceeds under the direct com- mand of the statute "in the same manner as if it had originally commenced in the said circuit court." Act March 3, 1875, (18 St. 471, § 3.) It would, therefore, be entirely competent for this court, after such a removal, to appoint a guardian ad litem and proceed with the case; for although the jurisdiction of the federal courts of equity does not extend to the care and protection of infants and their property generally, as do other courts of equity, those powers belong- ing to the states, they have abundant power to bind them and protect them in cases and controversies within their jurisdiction. N. Y. Life Ins. Co. V. Bangs, supra. My beat judgment in these matters of practice may be thus summarized : �1. An infant defendant, where the case is removable, may remove his suit into the federal court by his regular guardian, guardian ad litem, or next friend, who may file the petition and give the bond. �2. But this cannot be doneuntil proper steps have been taken by the service of process, either directly or by substitution, to bring the infant defendant into the state court aceording to the requirements ��� �