Page:Federal Reporter, 1st Series, Volume 8.djvu/688

674 FEDERAL REPORTER. �neoessary to the rigMEs of the plaintiff that it should be put upon him. And as section 4 of the aet of March 3, 1875, (18 St. 471,) preserves to the plaintiff all righis he has .^cquired by virtue of the proceedinga in the state court in the matter of process and the right to compel an appearance, I am of opinion that in any case sought to be removed from a state court to this court, where the removing party is an in- fant defendant, there must be first an appearance in his behalf in the state court by some one authorized by the state laws to make that appearance, and that whether it be toluntary, or coerced by direct of substituted process, it is essential as a preliminary ■ step to the removal, and cannot be supplied by appearance here, and that the remoyal must beby the person authorized bv law to bind the infant by such an appearance. �If it were not for this necessity of having the infant defendant bound by process or an authorized appearance, as to which the law is always strictly to be pursued, I should not hesitate to hold that a next friend could file the petition and bond for removal, because, although an infant def endfi by his guardian ad litem, the functions of that rep- resentative are strictly defensive, and whenever the infant becomes an actor, as by filing a cross-bill or petition, he proceeds by next friend, usually the gdardian ad litem, &ctmg.m that capacity in that particular suit ; and even a regular guardian, with power to sue, pro- ceeds or is taken technically as the next friend. 1 Dani. Ch. Pr. 68, 69, 77, (5th Ed.;) 2 Danh 1595, Where the regular guardian has power, under the statute appointing him, to bring suits — as he has in Tennessee — of course he can act in that capacity, and it is wholly immaterial whether he is called guardian or next friend, and I have no doubt sueh a guardian may file the petition to remove. In re Brocklebank, 6 Ch. Div. 358, it was held an infant might in- stitute bankruptcy proceedings in his own name, and it is a general rule he may, by next friend, pursue any remedy others have. But it is insisted that a guardian ad litem cannot do it, because — �" He is to defend the suit in the court from which he derives his authority, accordmg to the riiles and principles o£ law applicable to the case, as adminis- tered in that tribunal, and in couformity with the ordinary mode of trial and practice of the court in similar cases. It is not within the scope of his authority or duty to change the tribunal for the trial, or that the decision shall be upon principles other than those applicable to like cases in the forUm in which the suit is pending, His special and restricted powers admit of the exercise of no such discretion." Hannum's Heirs v. Wallace, 9 Humph. 129, 136. �This was said in deniai of the power to submit to arbitration, and ��� �