Page:Federal Reporter, 1st Series, Volume 8.djvu/683

•WOOLBIDGE V. m'kENNA. 66& �In cases of executors, administrators, and trustees, generally, the rule is that the citizenship of the real and not the nominal party governs ; and where saeh trustees are the real parties in interest their own . citizenship, and not that of the parties they represent, controls th© question, though it will be seen that the character of the suit, as one at law or in equity, enters sometimes into the determination of the question whether the trustee or the cestui que trust is the real or nom- inal party. Dill. Eem. (2d Ed.) § 54, and notes, p. 68 ; Bump, Fed. Proc. 133, 134; Id. 176, 184. Again, the cases cited will show that in removed causes the status of the case, as affected by state statute» and methods of procedure, enters into the question of real and nomi- nal parties to the record. Now, when an infant is a necessary party to the record the necessity of binding him to what is done by proper process and methods of procedure is apparent ; for, as remarked by counsel here, it is of the utmoBt importance, in a case affecting th& title to land, that no mistake shall be made in the matter of juris- diction over the person of the infant, while it may be quite unimportant •whether a state or federal court tries the case, if either may properly try it under the law. �Actions by and against infants, or rather those actions which con- cern their property, are so much changed by state legislation that attention must be given to rights thus acquired and distinctions thus established, or we are likely to get into confusion in administering a jurisprudence itself destitute of all statutory regulations on that subject. From the beginning these removal acts have obviateJ all necessity for process in this court by requiring the defendant, as a condition of his right of removal, to enter an appearance in this court. But, as to infant defendants, this cannot be done, for they cannot waive process or enter an appearance, nor can it be done without service of process by any one for them. After process served, their appearance may be entered for them, but the service is a pverequisite to any authority in that behalf . In original cases in the courts of the United States, sitting in equity, there can be no defence other- wise than by guardian ad litem, and one cannot be appointed, nor the infant bound, until service of process upon him. Equity Eule 87; Bank of the U. S. v. Ritchie, 8 Pet. 128 ; O'Hara v. MacConnell, 93 U. S. 160; AT. F. Life Ins. Go. v. Bangs, 13 Cent. L. J. 88 ; S. C. to be reported in 103 U. S.; Carrington v. Brents, 1 McL. 174. �As I understand the chancery practice to whieh we are bound by equity rules 91 and 87, an infant always sues by his next friend and. defends by his guardian ai litem, where he is personally a necessary ��� �