In January, 1919, the exact day of the month not being stated, the plaintiff executed to the defendant, Jackson, an assignment of wages due him by the Southern Railway Company, the same amounting to $30. He received no money on this assignment, the same being in renewal of a previous assignment for the same amount, made in December, 1918, which was then and there destroyed. At the time of this renewal assignment he paid Jackson $5. This transaction was repeated each month for five succeeding months, the plaintiff receiving no money on his six assignments of his wages, consisting of the one in January,, 1919, and the five succeeding monthly assignments. Petitioner alleged “that the amount of the assignments mentioned aforesaid was the sum of thirty dollars, which was the amount of the first assignment of wages that he sold to the said Jackson about 4 years ago, and that he has been ever since that time renewing the old assignment and paying the sum of five dollars for the new assignments, and that for the first one he only got the sum of $25.” Plaintiff further alleged “that the facts aforesaid show that he paid Jackson the full amount of the money that he got on the sale of his wages; and as the sale of his wages and the giving of the assignments as mentioned above was for the sole purpose of evading the usury laws of Georgia, the said Jackson is not entitled to any interest on the said thirty dollars. . . The exact amount of money paid as mentioned aforesaid amounts to the sum of $25; and therefore the plaintiff owes the said Jackson nothing.” The above allegations appear in the first paragraph of the plaintiff’s petition. In the second paragraph thereof the plaintiff “alleges that the last assignment he made was on or about the- day of latter part of Nov. or Dec., 1921, & Mar. to Janr. 1, 1922, for what was then due him as set forth aforesaid, but that the said Jackson has served notice upon the Southern Railway Co. that he has assignments or assignment for wages that became due on or about the - day of August, 1922, & Sept. 1922, or on wages made that became due in Dec. 1922, & Jany. 1923,” said notice being “given on or about the - day of -, when the fact is that no assignment was ever made to the said Jackson for any wages due later than Janr. day of # 1922, and said assignment could not *191hold up any wages due him for the month except the one for which the same was made, and not for wages earned many months thereafter.” In paragraph 3 plaintiff alleges “that the said Jackson will not bring suit on said assignment, for he knows that the plaintiff has a good and valid defense to the same, as has been fully set forth aforesaid; but by giving the notice of assignment to the Southern Eailway Co., he is in hopes that the said railway will discharge plaintiff or make him pay the said assignment, for he well knows that if one loses his job now, he may not for many months get another, for there’s at this time more men wanting jobs than there are jobs.” In paragraph 5 he alleges that he has no adequate remedy, as his damages will be irreparable. Plaintiff, in his equitable petition against Jackson and the Southern Eailway Company, in which he alleged the above facts, prayed that his last assignment of his wages to Jackson be canceled, that Jackson be enjoined from serving any more notices of said assignment of wages on the Southern Eailway Company, and that said company be enjoined from paying to Jackson any wages due to plaintiff upon any assignment of wages by him to Jackson.
The defendant demurred generally to the petition, on the grounds: (1) that it sets forth no cause of action, and does not authorize the relief prayed; (2) that there is no equity in the petition, and no right shown to the equitable relief prayed; (3) that the petition does not plainly, fully and distinctly set forth a cause of action; and (4) that plaintiff’s case is not set forth in orderly and distinct paragraphs. The defendant demurred specially on various grounds which need not be stated, under the disposition which we make of this case. The trial judge overruled all grounds of the general and special demurrers, except the special demurrer to paragraph 4 of the petition, which was stricken, with ten days leave to amend. The defendant, Jackson, excepts to the said judgment overruling his demurrers.
The petition not alleging that the defendant, Jackson, made any loan or advance of money to the plaintiff, and not alleging that the defendant took an assignment of the wages of the plaintiff to secure any loan or advance of money at a usurious rate of interest, but the petition, on the contrary, referring to the transaction as a sale of his wages to the defendant, the case does not come within section 3444 of the Civil Code, the allegation, that “the sale *192of his wages and the giving of the assignments as mentioned above was for the sole purpose of evading the usury laws of Georgia,” not being inconsistent with a sale of wages. This section of the code does not mate unlawful the sale and assignment of wages, save when connected with a loan at usurious rates. King v. State, 136 Ga. 709 (71 S. E. 1093); King v. Cantrell, 4 Ga. App. 263 (61 S. E. 144); Jackson v. State, 5 Ga. App. 177 (62 S. E. 726); Ison Co. v. A. C. L. R. Co., 17 Ga. App. 459 (87 S. E. 754); Tollison v. George, 153 Ga. 612, 616 (112 S. E. 896).
The burden is on the plaintiff to plainly, fully, and distinctly set forth his cause of action. Civil Code (1910), § 5538. It was doubtless his purpose to make a case for cancellation of a usurious assignment Of his wages, by alleging the payment to the lender of the actual money he received, with legal interest, and the oppressive use of the instrument by the lender after such payment. He cannot cancel such assignment without payment of the actual money received, with lawful interest. Patterson v. Moore, 146 Ga. 364 (91 S. E. 116). His allegations must clearly show that such payment in full has been made. King v. Moore, 147 Ga. 43 (92 S. E. 757). Failing to plainly, fully, and distinctly set out a cause of action entitling him to cancellation, the trial judge should have sustained this ground of demurrer; and we reverse his judgment on this ground, with direction that, if the plaintiff does not amend to meet it before the remittitur from this court is made the judgment of the lower court, this ground of demurrer be sustained and the case dismissed.
Judgment reversed, with direction.
All the Justices concur, except