Page:Federal Reporter, 1st Series, Volume 8.djvu/684

670 FEDERAL REPORTER. �party io the recoi'd ; but the court generally devolves the duty in either case upon the regular guardian, or will sometimes sustaia that guard- ian's action in that behalf without the technical formality of an appointment as prochein ami, or guardian ad litem, 1 Danl. Ch. Pr. (5th Ed.) 160, § 9; Sch, Dom. Eel. 592, c. 6; Id. 389, ce. 1, 2; Bing. Inf. c. 9, p. 118. But never is service of process upon the guard- ian alone, or upon the parent, or other substituted process of th.jt character, .sufficient to bind the infant where he is personally an essential party defendant. It must be served on him in person. See the authorities above. Now, -where the regular guardian has power under his appointment, whether it be judicial, statutory, or testament- ary, over the estate of the infant, and occupies as to that estate such a position that a suit by him or against him will be effectuai to bind it and the infant, suits brought by him and process served on him , will be sufiBcient in many cases, whether the infant be regularly made a party or not. In that class of cases, the jurisdiction of the federal courts, as to citizenship, will depend wholly upon the citizenship of the guardian, as in case of any other trustee, and not that of the infant, unless it be a suit in which, in a court of equity, the cestui que trust is an indispensable party, in which event it would depend on the circumstances of the case bow the court would treat the parties in deciding which would be the nominal and which the real party in interest, in view of the question of jurisdiction, or whether they would be both regarded as indispensable. If this were a case originally brought in this court, standing as to parties in the shape it now does, there is no doubt whatever that this infant defendant, like all other defendants, assuming that she is a citizen of Kentucky, would have to be sued in the district of her residence, so that process oould be personally served upon her, if the case is to be treated as a personal action to cancel the deeds of conveyance under which she claims title to the land; or if it be a suit in rem, or of that nature, against the land, there might be substituted process under the eighth section of the act of March 3, 1875, {18 St. 472,) which is understood to dis- pense with the requirement of personal service as well in the case of infants as other defendants. N. Y. Life Ins. Co. v. Bangs, supra; Mohr v. Manierre, 101 U. S. 417, at pp. 421, 422. But this case being removed from the state court, the question is whether we are to proceed now to bring in the infant, who has removed it, under this section of the act of congress, as her counsel contends we may; whether we are to treat her as already in this court by reason of her petition for removal, as he also insists she is ; or whether we are to ��� �