Opinion of the Court, per ALLEN, J.

upon personal property, when there can be no remedy at law. (Story Eq. Jur., § 717.)

A pledge of growing crops to secure advances of money, and acceptance of drafts by an agent, was specifically performed in Sullivan v Tuck (1 Md. Ch. Dic., 59); see, also, Story Eq. Jur., § 721, et seq. Had the lessor claimed a specific performance of the agreement, and the perfecting of a lien upon the furniture as against the lessees while they remained in possession of the demised premises, and after the furniture had been placed in the hotel, no one would have questioned the right of the landlord to the security agreed upon, and no court exercising the ordinary jurisdiction of courts of equity would have hesitated to decree specific performance and compelled the execution of the proper instrument to give the lien. That remedy cannot be had, for the reason that, by the wrongful act of the defendant, the property has been removed and a specific performance rendered impossible. The lessees are insolvent and unable to pay the rent due, and the defendant, without right or authority, or color of right or authority, and with full notice of the equities of the plaintiff, has taken the property and sold the same, and received the avails, to an amount more than sufficient to satisfy the plaintiff's claim. The defendant is trespasser as well against the tenants, the general owners of the property, as against the plaintiff. The defendant makes no title to the property, as purchaser, creditor or otherwise. Had the property remained, without change, in the possession of the defendant, the plaintiff could, in equity, have followed it, and asserted, by action in proper form, his equitable right in respect to it; and unless the defendant could have shown a superior title or a higher equity, the plaintiff would have had the benefit of his lien. The defendant has now the money, the avails of the property, and there is no good reason why the plaintiff may not, upon the facts admitted by the demurrer, as against the defendant, who has neither legal or equitable title-nothing but a naked possession, tortiously acquired-claim to have a lien upon that in place of the property. If the defendant has or claims

Statement of case.

any title to the property, or rights over it, as purchaser, judgment creditor or otherwise, it is possible questions of priority and precedence may arise; but upon the allegations of the complaint, admitted by the demurrer, the defendant has no right to question the plaintiff's claim.

The judgment of the General Term must be reversed, and judgment of the Special Term affirmed, with costs, unless the defendant shall, within twenty days after notice of the filing of the remittitur in the court below, serve upon the attorney for the plaintiff an answer to the complaint, duly verified, and pay the costs of the action from the time of putting in the demurrer.

The court below made a very liberal extra allowance to the defendant upon giving judgment in its favor. The reason for any extra allowance in a case like this is not very obvious, but it is enough to say that we do not think it a case for an extra allowance by this court to the plaintiff.

Judgment must be given in accordance with the views expressed, the plaintiff to have the costs allowed by law.

FOLGER and RAPALLO, JJ., concur; CHURCH, Ch. J., GROVER and PECKHAM, JJ., concur in result, on ground first stated in opinion.

Judgment accordingly.

THE MERCHANTS EXCHANGE NATIONAL BANK OF THE CITY OF NEW YORK, Appellant, v. THE COMMERCIAL Warehouse COMPANY OF NEW YORK, Respondent.

The complaint set forth a series of loans and advances, and of renewals of the notes given therefor, and alleged that at the time of each loan and of each renewal a charge of one per cent upon the amount of the debt was made in addition to lawful interest, and that thereafter a balance was claimed by defendant (the lender) as due to it on all the previous transactions, and that it granted a renewal of the loan upon the borrower giving his note for the amount claimed.

Upon demurrer,-Held, that this was a sufficient allegation of a usurious agreement; that the word "charge" in the association in which it

Statement of case.

was found in the complaint implied not only a demand made, but an obligation imposed and taken.

Defendant's charter authorized it to take the management, charge or custody of property, and to make loans and advances thereon upon such terms and commissions, and at such rates of interest, not exceeding seven per cent, as might be established by its directors. (Chap. 378, Laws of 1867.) The complaint alleged a charge by it of one per cent over and above lawful interest upon loans and advances ostensibly as commissions, but which were merely colorable devices to evade the prohibitions of the charter and of the usury laws. Held, that the complaint, presented an issue of fact for the jury as to whether the one per cent was a bona fide commission or a compensation for the use of the money, that it was not an issue of law which could be joined in by demurrer. The provisions of the act prohibiting corporations interposing the defence of usury (chap. 172, Laws of 1850) only prevent the avoidance by a corporation of its own contract upon the ground of usury. They do not apply to a case where the corporation succeeds to the rights of a party who might avail himself of the provisions of the usury laws. Where, therefore, property is pledged to secure a usurious loan, a corporation succeeding to the rights of the pledgor is not prohibited from demanding and recovering the property pledged.

As to who can avail himself of the plea of usury, see note.

(Argued June 5, 1872; decided June 11, 1872.)

APPEAL from a judgment of the General Term of the Superior Court of the city of New York, affirming a judgment of the Special Term in favor of the defendant, sustaining its demurrer to the complaint.

The action was brought to recover for the conversion of a quantity of tobacco, the warehouse receipts for which had been pledged with the defendant, by one Cornelius Oakley, as security for loans made to him by the defendant, which the complaint alleged to be usurious. The plaintiffs claimed the tobacco as purchasers from Oakley.

The substance of the allegations of the complaint appears in the opinion.

S. P. Nash for the appellant. This case is not affected by the act of 1850 (chap. 172, Laws of 1850); that act only affects contracts of a corporation. (Curtis v. Leavitt, 15 N. Y.,1; Butterworth v. O'Brien, 28 Barb., 187; S. C., 23 N. Y.,

Statement of case.

275; Rosa v. Butterfield, 33 id., 665; B. B. Bank v. Hope, 35 id., 65.) A purchaser of property subject to a usurious lien may attack the lien where the purchase is not subject to it. (Mason v. Lord, 40 N. Y., 476.)

Aug. F. Smith for the respondent. When a party has had the benefit of a loan from a corporation, he cannot be permitted to avail himself of the defence that the corporation had no authority under its charter to make the loan. (Silver Lake Bk. v. North, 4 John. Ch., 370; Potter v. Bank of Ithaca, 5 Hill., 490; State of Indiana v. Woram, 6 id., 37; Palmer v. Lawrence, 3 Sand. S. C. R., 170; Chester Glass Co. v. Dewey, 16 Mass., 102; McCutcheon v. The Steamb. Co., 13 Penn., 13; Steam Nav. Co. v. Weed, 17 Barb., 378; Mott v. U. S. Trust Co., 19 id., 568.) The defence of usury is a personal one, and can only be set up by the party originally bound to pay the debt, or his heirs, devisees or personal representatives. (1 Story on Contract, 4 ed., § 607, a.; Mech. Bk. v. Edward, 1 Barb., 271; Same Case, 2 id., 545; Post v. Bk. of Utica, 7 Hill., 404, approved in Rexford v. Widger, 2 Com., 131; Sands v. Church, 2 Seld., 347 De Wolf v. Johnson, 10 Wheat., 392; Green v. Morse, 4 Barb., 335; Bullard v. Raynor, 30 N. Y. R., 206; Billington v. Wagoner, 33 id., 31; Chamberlain v. Dempsey, 36 id., 149; Ohio & Miss. R. R. Co. v. Kasson, 37 id., 218.) No one but the borrower, his heirs, devisees or personal representatives, can take the benefit of the relief prescribed by section eight of the usury laws. (Schermerhorn v. Talman, 7 Ker., 131; Post v. Bank of Utica, 7 Hill., 391; Rexford ▾. Widger, 2 Com., 131; Bullard v. Raynor, 30 N. Y. R., 206.) A party by changing the form of action cannot entitle himself to relief under a statute which was not intended for him. (Code, § 275; Linden v. Hepburn, 3 Sand. [S. C.], 668; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. R., 357; Phillips v. Gorham, 17 id., 270; Goulet v. Asseler, 22 id., 225; Trull v. Granger, 4 Seld., 119; Bullard v. Raynor, 30 N. Y., 206.) The right of action to cancel or avoid notes or other securi

Opinion of the Court, per FOLGER, J.

ties void for usury cannot be assigned. (Boughton v. Smith, 26 Barb., 635; Bullard v. Raynor, 30 N. Y. R., 206.) Under the provisions of the act of 1850 (chap. 172, Laws of 1850) plaintiff is prevented from setting up usury. (Butterworth v. O'Brien, 23 N. Y. R., 275; Rosa v. Butterfield, 33 id., 665; Curtis v. Leavitt, 15 id., 9, 228.) In pleading usury it must be done with certainty; the facts must be stated that make the transaction usurious. (Cole v. Savage, Clark R., 361-363; Banks v. Van Antwerp, 15 How. Pr., 29, 30; Gould v. Horner, 12 Barb., 602; Cloyes v. Thayer, 3 Hill., 564; Vroom v. Ditmas, 4 Paige, 533; Griggs v. Howe, 31 Barb., 100-102; S. C., 2 Keyes, 574; Manning v. Tyler, 21 N. Y., 567; Dagal v. Simmons, 23 id., 491.)

FOLGER, J. The plaintiff was a privy in estate to Cornelius Oakley, the first owner of the property. If the contract between him and the defendant was usurious, he could have recovered the property pledged under it; and, as a general rule, the privies in estate to him could do the same. (Mason v. Lord, 40 N. Y., 476.)

The defendant advances some arguments why the plaintiff cannot, in this action, do that. First, it is claimed that the complaint does not state facts which make a case of a usurious contract. It is to be conceded that, in pleading usury, it is to be done with certainty. If the facts stated are consistent with usury, the pleading is not sufficient. I am, however, of the opinion, that the facts stated in the complaint in this action do well allege a usurious transaction, in its inception and throughout. The complaint avers an application for a loan or advance of money upon the pledge of property, and the making of a loan or advance in response to that application and upon that pledge. It then avers a succession of further like advances, on like pledges, to the sum of over $100,000; that the advances of smaller sums were, from time to time, consolidated into larger ones, and from time to time renewed, notes of Oakley being given for each advance when made, and for each renewal; that these advances and