2. It may be shown on cross-examination of an expert that he was paid $25 for his attendance; but it would also be proper for the court to charge that there was nothing discreditable in the fact.

3. A declaration for assault set out circumstances of special injury, but did not claim special damages. The judge charged that exemplary damages might be awarded. Held, that though the phrase was liable to mislead, there was no reason to think the jury were misled where the context of the charge showed that they were not left to give damages at discretion but only in view of the willfulness and malice of defendant's act, the actual damages from which could not be accurately computed.

Error to Kalamazoo. (Mills, J.) April 23.-April 30.

CASE.

Defendant brings error.

Affirmed.

Volney H. Lockwood for appellant.

Howard & Roos for appellee.

COOLEY, C. J. Action for an aggravated assault. The plaintiff recovered a judgment for five hundred dollars. A number of errors have been ingeniously assigned and argued, the most of them on questions of the admission of evidence, but they generally relate to matters within the discretion of the court and do not require particular notice. A few may be mentioned.

Defendant offered to prove by his neighbors that his reputation was that of a man who would not be likely to commit such an assault as was set up. The court declined to receive the evidence, but allowed him to prove that his reputation was that of a peaceable and law-abiding citizen. No reasonable complaint can be made by defendant to this ruling.

Defendant put a physician on the stand as an expert wit ness, and on cross-examination plaintiff was permitted to show that the witness was paid twenty-five dollars for his attendance in his character of an expert. This was excepted to but we think was admissible. Nevertheless as there was nothing in it discreditable either to the party or the witness, it would have been very proper for the court, on request, or even without request, to have said so to the jury when giving his general charge.

Complaint is also made that the court allowed the jury to give exemplary damages, though special damages are not claimed in the declaration. The declaration sets out an aggravated assault with circumstances of special injury, including a miscarriage. The estimate of damages must necessarily be very much at large in such a case. The judge told the jury exemplary damages might be given. The phrase is an unfortunate one and liable to mislead, as was pointed out in Stilson v. Gibbs [ante, p. 280], at the last term; but in this case the context shows that the judge was not leaving the jury to give damages at discretion; but only in view of the willfulness and malice of defendant's act, the actual damages from which could not be accurately computed. We have no reason to think the jury were misled. The judgment will be affirmed.

The other Justices concurred.

EDWARD D. COXE V. EDWIN HART, CYRUS S. HART, KATE E. HART AND GEORGE BEYER.

Bill to set aside mortgage-Parties.

A bill to set aside a mortgage made by a corporation is demurrable for want of parties if it impleads the foreclosure purchaser as defendant and does not implead the corporation.

Appeal from Menominee. (Grant, J.) Apl. 23.-Apl. 30.

BILL to set aside mortgage. Defendant Beyer appeals. Reversed.

Sawyer & Waite and John Power for complainant.

B. J. Brown for appellant.

CAMPBELL, J. Complainant, who is a stockholder and director and secretary and treasurer of a corporation known

as the Hart & Coxe Cedar Company, filed his bill under the statute relating to proceedings in chancery against corporations, as amended in 1879 (How. Stat. §§ 8150-8152), for causes included in section 8150. The bill set up several connected grievances committed by defendant Cyrus S. Hart, president of the company, in frand of his duties to the corporation, which were, in brief, these:

In March, 1883, by fraudulently misrepresenting the condition of the company, he induced his associates in the board, who were complainant and William E. Smith (the latter holding only one share of stock which he had in order to make up the necessary number under the statute, for directors, the remainder being owned by complainant and Hart), to make a mortgage of all the personal property to Edwin Hart, as trustee, to secure the payment of all the debts of the corporation in installments, from June, 1883, to February, 1884. Under this mortgage a sale is alleged to have been made irregularly and collusively to Beyer, a resident of Wisconsin, where the Harts also reside. Cyrus S. Hart is also charged with appropriating company money in various ways to his own use, with buying land with such funds in the name of his wife, the defendant Kate E. Hart, with issuing and then purchasing or discounting company paper at a profit, with overcharging purchases for the company, with shipping shingles and posts out of the State and crediting the company with only about 12 per cent. of their value, and sometimes giving no credit at all, and with removing the books from the State. It is not necessary to give the charges of the bill in detail, but they include a series of very gross acts of misconduct and fraud in violation of the plainest duties of his office.

Beyer put in a general demurrer, and this was overruled. below, and a decree pro confesso ordered in default of answer. He claims in this Court that the bill makes out no case of interference on behalf of this complainant, and that it is bad for want of parties.

This last point is well taken. So far as this defendant is concerned, the relief sought is for the benefit of the corpora

tion, and if he releases or accounts, it must be to the corporation and not to complainant, and in case he has any counterequities those would also exist against the corporation. It is therefore an indispensable party, so far as he is concerned, and so far as all the defendants are concerned who are charged with defrauding it. Cicotte v. Anciaux, ante p. 227.

But if the bill is otherwise sufficient to invoke the aid of equity, this defect can be rectified. It is therefore necessary to look into its general frame.

The statute of 1879, before referred to, allows a bill to be filed at the instance of a stockholder or director or officer against trustees, managers or other officers of corporations created for business purposes, in several different cases, of which it is enough for this case to say that this bill covers no less than six (if not seven) of the eight classes of causes indicted in section 8150 as grounds of interference. Cyrus Hart is implicated in all of them, and the other defendants in parts of them.

There is, in our opinion, an abundant showing of facts to sustain the jurisdiction under the statute; and while we must reverse the decree as it stands, we think justice requires that it shall be done without imperiling complainant's rights. The order of this Court, therefore, will be that the decree be reversed with costs, and the demurrer sustained, with leave to amend the bill within such time as may be allowed by the circuit court, and without prejudice to the injunction, which is retained till further ordered at the circuit.

The case will be remanded with these directions.

JAMES D. SMITH ET AL. V. MENOMINEE CIRCUIT JUDGE.

Garnishment-Disturbance of mortgagee's possession.

1. The right of a mortgagee of chattels to take them into his own possession is part of his security, and a contract right; and nothing afterwards done by or against the mortgager can affect it.

2. The possession of a mortgagee of chattels cannot ordinarily be disturbed by garnishment process for the sake of reaching a surplus after the lien is satisfied; and the receiver provided for by How. Stat. §8065 can, at most, exercise no greater power over such chattels than a sheriff could in levying execution.

3. A judgment creditor can sell, on execution, the debtor's interest in chattels mortgaged by him, and can take temporary possession of such chattels for the purpose of a levy, when they are in the mortga gee's hands. But the levy must be subordinate to the mortgagee's right, and if sale is made without first paying off the mortgage, it must be a sale of the goods in gross, subject to the mortgagee's lien. 4. The receiver provided for in garnishment proceedings to take possession of chattels mortgaged by the principal debtor but in the hands of the mortgagee (How. Stat. § 8065) may properly be empowered to examine and inventory the property for the purposes of an intelligent sale; but he must give bond and all his proceedings must be at the expense of the fund realized on the sale, and not at that of the mortgagee. And no sale can be made unless more than the mortgage secures can be realized, and if made at all, it must be a sale in gross, subject to the mortgage lien, and not a sale in parcels.

Mandamus. Applied for April 23. Granted April 30.

B. J. Brown for relator. How. Stat. § 8065 does not contemplate divesting a mortgagee's possession for the benefit of the plaintiff in garnishment: Patten v. Accessory Transit Co. 4 Abb. Pr. 237; see also Quin v. Brittain 1 Hoff. Ch. 354; Rowe v. Wood 1 Jac. & W. 315; Berney v. Sewell id. 628; a receiver must always give security, and it will not be dispensed with even by consent: Tylee v. Tylee 17 Beav. 583; Manners v. Furze 11 Beav. 31; Bailie v. Bailie 1 Irish Eq. R. 413; Connolly v. Codd Kay & J. 624; in proceedings under a statute, unless the statute in terms dispenses with security, it will be required under the general