Mechanics' National Bank of New York and another vs. Landauer. a party claiming rights against its receiver to bring an independent action against him, or to compel such party to proceed against him by petition in the action in which he is receiver. With the exercise of such discretion this court cannot interfere on appeal, unless there has been a manifest abuse of it. In the present case, if the appellants can obtain the same relief against the receiver by petition in the action in which the receiver was appointed that they seek in the creditors' suit, it certainly was no abuse of discretion to deny the petition for leave to sue the receiver in the latter suit. It appears from the statement of facts herein that the objects of the proposed creditors' suit are (1) to compel the judgment creditors of Davis & Michelbacher, who received the proceeds of the execution sales of the stock of goods, to pay over the amount thereof to the two banks, the appellants, to apply on their judgments against Davis & Michelbacher; (2) to obtain an appropriation of the accounts of that firm in the hands of the receiver, the respondent, and the moneys collected by him thereon, to the payment of their demands; and (3) to enforce payment of a reasonable sum by the respondent for the good-will of such firm, to be applied in like manner. All other relief prayed is only subsidiary to or in aid of these general objects. Can these objects, so far as they affect the receiver, be as well accomplished by petition in the action to dissolve the partnership of Davis & Michelbacher, in which he was appointed, as they can be in an independent action against the receiver? If so, the order refusing leave to sue should be affirmed. 1. The receiver, as such, has no concern with the claim against the judgment debtors of Davis & Michelbacher for the proceeds of the execution sales. He is not a necessary party to the proposed creditors' suit to enable the appellants to reach that fund. If he was a party to the conspir Mechanics' National Bank of New York and another vs. Landauer. acy and fraud which resulted in putting that fund in the hands of such judgment creditors, as is charged, such fraud and wrong has no connection with his receivership, and any liability therefor by him to the appellants is purely a personal liability. In order to maintain a personal action against him on account of such liability (if any exists), no leave of court is necessary. 2. If the appellants succeed in establishing a prior lien upon the assets of the firm, to wit, the accounts of the firm and the money collected thereon by the receiver, the court may enforce that lien by its order made in the action of Davis v. Michelbacher to dissolve the partnership and wind up its affairs. The receiver was appointed to preserve the assets of the firm pendente lite, which includes the collection of its accounts, and to hold the same for the ultimate disposal thereof by the court according to the rights and priorities of all parties interested. He took no title to the property, and has no lien upon it. The title thereto remains, as it was before his appointment, in Davis & Michelbacher, subject to the control of the court. High on Receivers, sec. 5. Hence the receiver is not a necessary party to the creditors' suit to enable the appellants to establish, if they can, their prior right to the assets in his hands, or to obtain the appropriation thereof to the payment of their demands. 3. If, as charged, there was a valuable good-will pertaining to the business of the firm when the receiver was appointed, which he might and ought to have sold, but which he suffered to be lost, the court, by a proceeding in the partnership suit, will hold him to account for its value, and order the same paid to the person who shows the paramount right to the money. 4. A proceeding for the removal or suspension of the receiver must necessarily be taken in the case in which he is receiver. 5. We are strongly pressed to determine whether the VOL. 68-4 McKeigue, Adm'x, etc. vs. The City of Janesville. transaction set out in the complaint in the proposed creditors' suit constitutes a voluntary assignment for the benefit of creditors, with preferences to the persons to whom the judgment notes were given. But we do not reach that question, for, in the view we have taken of the case, it is immaterial on this appeal which way the question is answered. Hence we leave it undetermined. It follows from the foregoing views that the refusal of the county court to grant leave to sue the receiver was not an abuse of its discretion. By the Court.- Order affirmed. MOKEIGUE, Administratrix, etc., Respondent, vs. THE CITY OF JANESVILLE, Appellant. December 22, 1886 January 11, 1887. HIGHWAYS: MUNCIPAL CORPORATIONS. (1) Defective highway: Notice of injury causing death. (2) Pleading: Pecuniary loss to children from death. (3, 4) Evidence: Expressions of pain: Ill health of dependent children. (5) Mayor as attorney against city. (6) When notice to alderman notice to city. (7) Annuity tables. (8) Contributory negligence: Knowledge of danger. 1. If a person injured by reason of the insufficiency or want of repairs of a highway dies within ninety days, the fact that the notice required by sec. 1339, R. S., was not given, does not defeat an action brought by the administrator under sec. 4255, R. S. It is not necessary in any case for the administrator to give such notice. 2. A complaint stating that plaintiff's intestate was a widow at the time of her death, and that three of her children, being of the ages of thirteen, eleven, and nine years respectively, were dependent upon her for their support, nurture, and education, is held to show sufficiently that such children suffered a pecuniary loss by her death. 3. Where the death of plaintiff's intestate is alleged to have resulted from injuries caused by defendant's negligence, testimony as to the McKeigue, Adm'x, etc. vs. The City of Janesville. expressions of pain uttered by the deceased at the time she claimed to be injured, and from that time to her death, and indicating where such pains were located, is admissible. 4. Evidence that some of the younger children of plaintiff's intestate were in poor health is competent as tending to show that her death was a pecuniary loss to them especially. So, also, evidence tending to show that the children had no means of support of their own is admissible. 5. Though after the commencement of an action against a city, the plaintiff's attorney becomes mayor of the city, he may still appear for the plaintiff on the trial of the action. 6. Where by a city charter the common council has "control and power over and management of " all streets, notice to a member of the council of a defect in a street is notice to the city itself. 7. In an action to recover damages for the death of a person, annuity tables are admissible in evidence as tending to show the number of years the deceased would probably have lived. 8. The fact that a person who was injured while passing over a defective cross-walk knew of the defect and that there was some risk in so passing, and might easily have gone around the dangerous place, does not, as matter of law, establish contributory negligence. APPEAL from the Circuit Court for Rock County. The principal facts are stated in the opinion. The sixth assignment of error there referred to was based upon the ruling of the court below in permitting the plaintiff to prove that after the death of the mother the younger children. were entirely supported by their older brothers and sister. There was a verdict for the plaintiff for $1,750. A motion for a new trial was denied, and from the judgment. entered on the verdict the defendant appealed. Charles E. Pierce and William Smith, for the appellant. John Winans and Ogden II. Fethers, for the respondent. TAYLOR, J. This action was brought to recover damages of the appellant for causing the death of Bridget McKeigue by the negligence of the city in not keeping in repair a cross-walk in said city. The claim made by the respondent is that on the 14th day of April, 1883, Bridget McKeigue, McKeigue, Adm'x, etc. vs. The City of Janesville. while crossing one of the public streets in said city on a dark and rainy evening, was violently thrown down by reason of a defect in the cross-walk where the walk crossed the gutter; that she was greatly injured by her fall, and that, by reason of such injury, she became sick, and so remained until her death, which occurred on the forty-ninth day after her alleged injury. That the deceased fell on the cross-walk at the place indicated in the complaint is fully established by the evidence. That her fall was occasioned by a defect in the cross-walk existing at the time is also well established, and is not seriously controverted. All other material facts in the case are controverted by the learned counsel for the appellant in a very able and exhaustive printed brief, as well as by a forcible oral argument on the hearing of this appeal. It was contended that there was not sufficient evidence showing that the city authorities had any knowledge of the alleged defect in the cross-walk. Admitting that there was any such defect, it is denied that the deceased was injured by her fall on the walk, as claimed by the respondent. It is denied that, if she was injured, there is any evidence in the case sufficient to justify the finding of the jury that her death was caused by such injury. After listening to the arguments of the learned counsel and reading the evidence in the case, we are satisfied that there is sufficient evidence to sustain the findings of the jury that the cross-walk was defective; that the deceased fell upon the walk by reason of such defect; that she was injured by such fall; that such injury caused her death; and that the appellant had notice, either in fact or by reason of the long continuance of the defect in the walk, before the accident happened. It was strongly urged upon us by the learned counsel for the appellant that, upon a full consideration of all the evidence, we would find that there was not sufficient evidence to sustain the verdict upon these |