Page:Federal Reporter, 1st Series, Volume 8.djvu/682

668 FEDERAL REPORTER. �AlachuaCo. 3 Woods, 683; Osgood v. Railroad Co.6 Biss, 330, 335, And the late circuit judge of the eiglith circuit seems to appiove this latter class of cases. Dill. Eem. (2dEd.) §§ 83, 85, and notes. See, also, 20 Am. L. Eeg. (N. S.) 24, 40. �Embarrassed as I have been by this conflict of authority, I am satisfied, for the reasons I have stated, that the jurisdiction should not be defeated by an excusable failure to file the transcript on the first day, notwithstanding the seemingly peremptory language of the statute, which, I think, in that respect is only directory. In this case the reasons given for not filing in time seem to me excusable, in view of the exceedingly brief delay. But I think proper to say, in the light of the authorities consulted, that I am not prepared to hold that every negligence should be excused, and the time enlarged, in all cases where no special injury to the other side appears, but that the true rule seems to be that the statute must be strictly obeyed, and a failure to comply with it must be reasonably accounted for, before the court will exercise its power to enlarge the time. Inexcusable negligence in itself imports an injury to the adverse party. And while the statute may be held to be directory merely, and not manda- tory, for the purposes I have stated, it does not follow that it is nuga- tory in that regard, or that the courts can ignore its plain require- ment that the transcript shall be promptly filed on the first day of the term. �The second ground for the motion to remand presents as much difficulty as the one just determined, and raises several important questions of practice under this statute. It must be conceded, as it is, that in a proper case, and in a proper mode, a minor defendant or plaintiff may remove his eontroversy into this court, as other par- ties may, for the act of congress makes po distinction betvreen cases where the parties, or some of them, are infants, and where they are sui juris, but confera the right on any party to a suit coming within the jurisdiction ; and it cannot be supposed, therefore, that suits by or against infants are excluded from the operation of the act. But how the removal is to be made in these cases is not pre- scribed, nor bas it been indicated by any case or text-writer, so far as I can find from anything brought to my attention by counsel or developed by my own investigations. That the jurisdiction depends on the citizenship of the infant and not that of the next friend, where he is a plaintiff, seems established. Willia7ns v. Ritchey, 3 Dill. 406. The same is true of a married woman as plaintiff. Wormley v. Wonnlaj, 8 Wheat. 451; liuckman v. Palisade Co. 1 Fed. Eep. 367. ��� �