Badger v. Wagstaff ( 1854 )

Morris, Justice.

The complaint avers sufficient consideration for defendant’s promise to give to plaintiff his note for $5,391.50, to be endorsed by J. H. Richards; and in case Richards would not endorse it, then defendant to assign to plaintiff, as collateral security for the payment of the note, defendant’s interest in $10,000 capital stock in a certain manufacturing company.

Also avers Richards’ refusal to endorse the note, and defendant’s refusal to assign the interest in the capital stock.

Plaintiff, in his complaint, asks an injunction to prevent defendant selling or disposing of his said interest, and demands judgment that he assign to plaintiff his said interest in accordance with .his agreement. The plaintiff swears to his complaint, and also makes a separate affidavit, in which he states the same facts contained in his complaint, with the additional fact that the defendant has threatened to sell his interest in said manufacturing company.

This application for an injunction is upon the complaint; and the affidavit is only in corroboration of the complaint.

That the affidavit states more than the complaint, does not lessen the efficacy of the facts stated in the complaint, or transfer the application made upon the complaint, to an application made upon affidavit.

This application is upon the complaint under the first clause of section 219 of the Code, and entitles the plaintiff to his injunction.

Motion for injunction granted, with $5 costs, without prejudice to defendant renewing motion upon answer, or answer and affidavits.