Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/88

 78 I N J I N J the deceased has acquired the land otherwise than as heir, and corresponds to the English term purchase in the technical sense explained above. Heritage is land acquired by deceased as heir. The distinction is important only in the case when the heir of the deceased is to be sought among his brothers ; when the descent is lineal, conquest and heritage go to the same person. And when the brothers are younger than the deceased, both conquest and heritage go to the brother (or his issue) next in order of age. But when the deceased leaves an elder and a younger brother (or their issues), the elder brother takes the conquest, the younger takes the heritage. Again, when there are several elder brothers, the one next in age to the deceased takes the conquest before the more remote ; and when there are several younger brothers, the one next to the deceased takes the heritage before the more remote. When heri tage of the deceased goes to an elder brother (as might happen in certain eventualities), the younger of the elder brothers is preferred. The position of the father, after the brothers and sisters of the deceased, will be noticed as an important point of difference from the English axioms ; so also is the total exclusion of the mother and the maternal line. After brothers and sisters and their issue have been exhausted, the heir is sought among the relations of the father ; but even when these are exhausted, the estate, although it should have descended ex parte materna, can never revert to the maternal line. As between brothers and sisters the half-blood only succeeds after the full blood. Half-blood is either consanguinean, as between children by the same father, or uterine, as between children having the same mother. The half-blood uterine is excluded altogether. Half-blood consanguineau succeeds thus : if the issue is by a former marriage, the youngest brother (being nearest to the deceased of the consanguinean) succeeds first ; if by a later marriage than that from which the deceased has sprung, the eldest succeeds first. In the United States the English law of inheritance has been more completely repudiated than any other portion of our system. Each State has established rules of descent for itself, and the observation of Chief Justice Reeve that the nation &quot;has no gene ral law of descents, which probably has not fallen to the lot of any other country,&quot; is to some extent justified by the great dif ferences in detail between the rules obtaining in the different States. The following are the rules of most general application, as stated in Kent s Commentaries on American Law, twelfth edition, edited by 0. TV. Holmes, jun. 1. Real estate shall descend to the lawful descendants of the owner, in the direct line of lineal descent ; and if there be but one person, then to him or her alone ; and if more than one person, and all of equal degrees of consanguinity to the ancestor, then to the several persons or tenants in common in equal parts, however remote from the in testate the common degrees of consanguinity may be. 2. When the lawful issue are of unequal degrees of consanguinity to the in testate, the inheritance shall descend to the children and grand children, if any be living, and to the issue of such as shall be dead, as tenants in common ; but such grandchildren and their descend ants inherit only such shares as their parents respectively would have taken if living. These two rules are stated to prevail in all the United States, with some important variations, however, in the case of the first rule. 3. In the absence of descendants the inherit ance goes to the parents, either first to the father and next to the mother, or jointly under certain conditions. This canon is de scribed as prevailing &quot;to a considerable extent.&quot; 4. If the in testate dies without issue or parents tlia estate goes to his brothers and sisters and their representatives. If the relatives are of equal degrees of consanguinity they take in equal parts ; but if, of the same degree, some be dead, leaving issue, and others living, the descendants of those who are dead take only their parents skare. Collaterals under this rule would be preferred to ascendants after parents. &quot;It is perhaps universally the rule that brothers and sisters are preferred to grandparents, though the latter stand in an equal degree of kindred &quot; (Kent, vol. iv. p. 401). In some States there is no essential distinction left between the whole and the half-blood, in others the half-blood is postponed, but nowhere is it totally excluded. 5. In default of the foregoing, the inheritance f morally goes to grandparents, but in some States (New York, cw Jersey, and North Carolina) grandparents are excluded, and in others postponed. 6. Next come uncles and aunts and their descendants, taking per capita if of equal degree, and per stirpcs if not. 7. If the inheritance came to the deceased on the part of his father, the father s brothers and sisters would exclude the mother s brothers and sisters, and the mother s brothers and sisters would have a similar preference in respect of property com ing to the deceased ex, parta materna,. A similar distinction is observed in some States in applying the fourth rule. 8. On failure of heirs under the preceding rules, recourse is had to the &quot;next-of- kin &quot; as ascertained by the English statute of distributions. In many of the State? the harshness of the English rule that natural children have no inheritable blood is greatly mitigated. In Louisi ana, if duly acknowledged, they may inherit from both father and mother in the absence of lawful issue. A full summary of the rules of descent prescribed by the statute law of the various States of the Union, will be found in a note appended to the first chapter of Washbuvu s American Law of llcal Property, vol. iii., Boston, 1868. INJUNCTION&quot;, in English law, is a judicial process whereby a party is required to refrain from doing a parti cular thing according to the exigency of the writ (Daniel s Chancery Practice). Formerly it was a remedy peculiar to the Court of Chancery, and was one of the instruments by which the jurisdiction of that court was established in cases &quot;over which the courts of common law were entitled to exercise control. The Court of Chancery did not presume to interfere with the action of the courts, but, by directing an injunction to the person whom it wished to restrain from following a particular remedy at common law, it effected the same purpose indirectly. Under the present constitution of the judicature, the peculiar features of the injunction have been considerably altered. It is now equally available in all the divisions of the high court of justice, and it can no longer be used to prevent an action in any of them from proceeding in the ordinary course. From the definition given above it is apparent that an injunction is properly a restraining order, although there are instances in which, under the form of a prohibition, a positive order to do something is virtually expressed. Thus in a case of nuisance an injunction was obtained to re strain the defendant from preventing water from flowing in such regular quantities as it had ordinarily done before the day on which the nuisance commenced. But generally, if the relief prayed for is to compel something to be done, it cannot be obtained by injunction, although it may be expressed in the form of a prohibition as in the case in which it was sought to prevent a person from discontinuing to keep a house as an inn, which is the same thing as ordering him to keep an inn. The injunction was used to stay proceedings in other courts &quot;wherever a party by fraud, accident, mistake, or otherwise had obtained an advantage in proceeding in a court of ordinary jurisdiction, which must necessarily niako that court an instrument of injustice.&quot; As the injunction operates personally on the defendant, it may be used to prevent applications to foreign judicatures ; but it is not used to prevent applications to parliament, or to the legislature of any foreign country, unless such applications be in breach of some agreement, and relate to matters of private interest. In so far as an injunction is used to prohibit acts, it may be founded either on an alleged contract or on a right independent of contract. The jurisdiction of the court to prevent breaches of contract has been described as supplemental to its power of com pelling specific performance; i.e., if the court has power to compel a person to perform a contract, it will interfere to prevent him from doing anything in violation of it. In the case of contracts to abstain from doing, injunction is in fact a means of compelling specific performance. But even when it is not within the power of the court to compel specific performance, it may interfere by injunction ; thus, e.g., in the case of an agreement of a singer to perform at the plaintiffs theatre and at no other, the court, although it could not compel her to sing, could by injunction prevent her from singing elsewhere in breach of her agreement. In other matters, an injunction may as a general rule be obtained to prevent acts which are violations of legal rights, except when the same may be adequately remedied by an action for damages at law. Thus the court will interfere by injunction to prevent waste, or the destruction by a limited owner, such as a tenant for life, of things forming part of the inheritance. Injunctions may also be obtained to prevent the continuance of nuisances, public or private, the infringement of patents, copyrights, and trade marks. Trespass might also be prevented by injunction, in certain cases, alluded to below. Under the Common Law Pro-