by John Marshall Harlan

“ None of the questions which were before the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first would lead to endless litigation.' So, in Durant v. Essex Co., 101 U.S. 555, 556, it is said: 'On a mandate from this court affirming a decree, the circuit court can only record our order, and proceed with the execution of its own decree as affirmed. It has no power to rescind or modify what we have established. ”

“ Be this as it may, we cannot agree that the mere failure of the guardian ad litem and next friend to apply for a rehearing raised any presumption of infidelity to his trust.
Some stress is laid upon the fact that Beckwith met this suit by demurrers to the bill, and did not file an answer. This does not show fraud or collusion. There was no need of making him a defendant. No relief was prayed against him. He was neither a necessary nor proper party to the relief asked. If he preferred to terminate the suit as to himself by a demurrer, it was his privilege to pursue that course. ”

“ Buckner had been unmarried, she would have been a defendant in the original suit, and the plaintiff in the cross-suit, and also because that suit concerned her separate property. In the cross-bill he joined with his wife in asking that the trust intended to be created by the deed of 1861 be enforced, and gave his assent to any decree that would place the property under her sole control and preserve it for her benefit. This was regarded by the supreme court of the state as a renunciation by him of even a life-estate, and the decree of 1871 proceeded upon that ground. ”

“ They do not sustain the proposition that a decree, entered in pursuance of the mandate of an appellate court, but which is void by reason of the party's not being before that court, or before the court of original jurisdiction, may not be attacked by an original bill. It is therefore necessary to inquire whether the circuit court of Cook county had jurisdiction of the infant Kingsbury upon the cross-bill filed by Buckner and wife. ”

“ The infant, by his prochein ami, having prosecuted an appeal to the supremecourt of Illinois from the original decree rendered in the suit brought by him, and having appeared by guardian ad litem to the appeal of Buckner and wife, is as much bound by the action of that court in respect to mere errors of law, not involving jurisdiction, as if he had been an adult when the appeal was taken. In Gregory v. Molesworth, 3 Atk. 626, Lord HARDWICKE said that 'it is right to follow the rule of law, where it is held an infant is as much bound by a judgment in his own action as if of full age ”

“ Kingsbury was at his death its real owner; that the title to the real estate of which the later died seised, descended to and vested in Mrs. Buckner and her brother, subject to the widow's right of dower, and to the incumbrances thereon; that the defendants were married when Maj. Kingsbury died, and in 1858 had issue to their marriage, a daughter, who was then living, by reason whereof defendant Simon B. Buckner became vested with a life-estate as tenant by the curtesy initiate in the property vested in his wife ”

“ The cause was remanded to ascertain her share, and not to determine the trust. The latter had been established by the declaration of this court. This appeal is prosecuted from the decree making partition, and can bring before us no other question, except questions incident to the order for partition. We cannot examine as to the merits of the original case, but only as to proceedings subsequent sequent to the decision at the former hearing. ”

“ Kingsbury was killed at the battle of Antietam, on the 17th of September, 1862.
On the 18th of July, 1870, the plaintiff herein, suing by Corydon Beck with, his next friend, instituted an action in the circuit court of Cook county, sitting in equity, against Simon B. Buckner, Mrs. Buckner, Ambrose E. Burnside, Jane C. Kingsbury, John J. D. Kingsbury, Albert G. Lawrence, and Eva Lawrence. The lastnamed defendant, as Eva Taylor, intermarried with Lieut. ”

“ The county of Cook is in the northern grand division; and, unless the parties consent, cases from that county, which may be taken to the supreme court, must go to the court sitting in that grand division. ”