SKILLERN'S EXECUTORS v. MAY'S EXECUTORS

SKILLERN’S EXECUTORS v. MAY’S EXECUTORS. It is too late to question the jurisdiction of the circuit court after the cause has been sent back by mandate. •THIS was a case certified from the circuit court for the district of Kentucky, the judges of that court being divided in opinion. ° The former decree of the court below had been reversed in this court, and the cause M remanded for further proceedings to be had therein, in order that an equal and just partition of the 2.,500 'acres of land, mentioned in the assignment of the 6th of March,-1785, be made between the legal representatives of the said George Skillern and the said John May.5’’ (Vide ante, vol. 4. p. 141.) The cause being before the court below upon the mandate, the question occurred which is stated in the following certificate, viz. v In this case a final descree had been pronounced, and by writ of error removed to the supreme court, who reversed the decree, and after the cause was sent back to this court it was discovered to be a cause not within-the-jurisdiction of the court ; but a question arose whether it efin now be dismissed for want of jurisdiction, after the supreme cqurt had acted thereon. The opinion of the. judges of this court being opposed on this question, it is ordered “ that the same be adjourned to the supreme court for their decision,” See. [MAJORITY] This court, after consideration, directed the following opinion to be certified to the court below, viz. “ ^ aPPearS that the merits of this canse had been finally decided in this court, and that its mandate required only the execution of its decree, it is the opinion of this court that the circuit court is bound to carry that decree into execution, although the. jurisdiction of that court be not alleged i'n the pleadings.”