petition for the injunction, which petition should contain the substance of the bill supported by affidavit. As soon as the court has ordered the injunction, the plaintiff must obtain the writ under the seal of the court, and should lose no time in serving it; which is done by shewing the party against whom it is issued the writ itself, and delivering him personally a true copy thereof. If the defendant resides abroad, and the injunction is to restrain proceedings at law, the court will allow service on his attorney or solicitor. Where a special injunction has been granted, and the party against whom it issues absconds, service at the house which appeared to be the last place of his abode has been held to be sufficient (m). The defendant having answered cannot move to dissolve the common injunction, that is the injunction granted upon motion of course to restrain proceedings at law, except upon orders nisi and absolute; and he is not, unless the plaintiff has amended his bill, at liberty to apply to dissolve it before filing his answer (n). But when he has answered, he may obtain an order nisi, that is, unless cause be shown to the contrary on a day fixed by the order. If no cause be shown to the contrary by the plaintiff on the day mentioned in the order nisi, then, upon the defendant's moving that it be made absolute, at the same time producing an office copy of the filed affidavit of the due service of the order nisi, the injunction is dissolved as of course. But the usual orders for dissolving the injunction nisi and absolute can be dispensed with, and a special motion can be made to dissolve it, where the bill was filed against a cestui (m) 5 Ves. 147; 14 Ves. 205. que trust and his trustee, to restrain an action brought by the former in the name of the latter (0). By one of the new rules, (p) it is ordered that the plaintiff in any injunction cause, having obtained the common injunction to stay proceedings at law, may (either before or after the answer of the defendant shall be put in, and whether such injunction shall or shall not have been continued to the hearing of the cause) obtain an order as of course for leave to amend the bill without prejudice to the injunction, but that such order shall contain an undertaking by the plaintiff to amend the bill within one week after the date of the order, and, in default thereof the order shall become void. And that in case the bill shall be amended pursuant to such order, the defendant shall thereupon, and although he may not have put in his answer to the bill or the amendments thereof, be at liberty to move the court on notice to dissolve the injunction, on the ground that the bill as amended does not, even if the amendment be true, entitle the plaintiff thereto. The order nisi for dissolving the common injunction may be obtained upon petition as well as by motion, and every such order must be served two clear days at least before the day upon which cause is to be shewn against dissolving the injunction. 23 N. O., 3 April 1828. On the day for shewing cause against dissolving the injunction, the plaintiff may either show cause by excepting to the sufficiency of the answer, or procure a reference to the master for impertinence, or upon merits disclosed in the answer, why the injunction should not be dissolved at the next motion day. If the plaintiff, after undertaking to shew cause upon the (0) Sharpley v. Perring, 8 Sim. 600. merits against dissolving the injunction, should fail therein, the injunction is dissolved, and exceptions cannot be shewn as a cause. (q). If the plaintiff offer exceptions to the sufficiency of the answer, or refer it for impertinence, the court will put the plaintiff upon terms of procuring the master's report of insufficiency in four days, (one inclusive and the other exclusive), upon the impertinence within a week (r), or in default thereof, the injunction to stand dissolved. If the master either find the answer sufficient or pertinent, the injunction is ipso facto dissolved without further motion or order. If the master find the answer insufficient, and the defendant take exceptions to his report which are allowed, the injunction is dissolved (s). If the master report the answer insufficient, and there are no exceptions to his report, the injunction is continued as if no answer had been put in. Mere impertinence, which may be expunged, is not of itself sufficient cause against dissolving the injunction, unless the answer be then insufficient. A special injunction may be dissolved, either by the defendant's filing an affidavit against the plaintiff's case before answer, or upon the answer coming in by a notice of motion upon the merits contained therein. 2. An injunction to stay waste is in the power of the courts of Equity to grant, and, on account of its greater practical utility, it supersedes the common law remedy of a preventive nature called the writ of estrepement, which lay after a judgment obtained in a real action before possession delivered by the sheriff, to prevent the defendant from com (q) Harcourt v. Ramsbottom, 3 Swan. 362. mitting waste in the lands recovered. The statute of Gloucester added another writ to prevent the defendant from committing waste during the suit denominated the writ of estrepement pendente placito. This writ, however, has been abolished by the st. 3 & 4 W. 4. c. 27. § 36. and the suitor is now driven to the less formal and tedious, though more effectual, method of proceeding by bill for an injunction, which will be granted either upon a mere threat to commit waste, or where the party is in the act of committing it, and for an account of so much waste as may have been done already. This at once prevents the commission of future waste, and compels by a decree compensation for the past (t). Waste is that which does a lasting injury to the freehold or inheritance, and consists of two kinds-voluntary and permissive. The former is the spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disinherison of him that hath the remainder in fee simple, or fee tail (u). The latter is that which is the consequence of omission only, as where the tenant suffers a house to fall down for want of necessary repairs. An injunction will issue for permissive as well as voluntary waste (v). By the common law, waste was punishable in three persons only-guardian in chivalry, tenant in dower, and tenant by courtesy, and not in a tenant for life or years. The reason assigned is, that the three former were created by act of law itself, which provided its own remedy against them; but the tenant for life or years coming in under demise and lease of the owner of the fee, he had the liberty of providing (u) Co. Litt. 53 (a). (t) Eden on Injun. 160. against committal of waste if he chose, and if he did not, it was his own default (w).* The statutes of Marlbridge, 52 Hen. 3. c. 23, and of Gloucester, 6 Edw. 1. c. 5, afterwards extended the writ of waste against farmers or other persons who held as tenants for life, or tenants for years. By the statute of Marlbridge as well as by the common law, the punishment for waste was only single damages, except in the case of a guardian who also forfeited his wardship, 9 Hen. 3. c. 4; but the statute of Gloucester directed that the tenant should forfeit the thing or place wasted, and also triple damages. Under this statute it has been held that where there are two joint tenants for life or years, and one of them commits waste, this shall be deemed waste by them both as to the place wasted; but triple damages shall be recovered only against the person who actually committed the waste (x). It was for some time contended, that under the statute of Marlbridge a tenant for life absque impetitione vasti, or without impeachment of waste, was not only at libery to commit waste by felling timber, but also to apply the timber for his own use-such a tenant being invested with a full power of cutting down timber and thereby opening new mines for his own use, as if he had an estate of inheritance, and taking the timber if severed by others (y). Experience soon discovered the prejudicial and mischievous consequences resulting to the inheritance by so unrestrained a licence, therefore, although (w) Bl. B. 2. 282. * The reason why the common law allowed so large a power to a tenant for life, "without impeachment of waste," was for the interest of the public, as timber might thereby circulate for shipping and other uses, (Packington's case, East. term, 1744, 3 Atk. 216.) (x) 2 Inst. 302. (y) 1. T. R. 56; Harg. Co. Lett. 220. |