Sitterly agt. Murray. that order and determination the overseer of the poor of the town of Palatine appealed to the county court for a new trial under chapter 38, Laws of 1872 (3 R. S. [Bank's new 7th ed.], pp. 1878, 1879). Upon such new trial duly had the foregoing facts were proved. The important question to be determined is the legal one as to which town Funk was legally settled in at the time he became a charge upon the town of Palatine and was relieved, as the statute required, by the overseer of the poor of that town. The question upon similar facts has repeatedly troubled me during the past few years, and I understand that it has long been a perplexing question to superintendents of the poor and other judges throughout the state having the matter before them. There is no adjudicated decision upon the subject under our present statute, and I am compelled to decide the question by a construction of the several provisions of the statute upon the subject, unaided by any adjudicated authorities. Section 29 of the statute (3 R. S. [Bank's new 7th. ed.], pp. 1858, 1859), provides as follows: "Every person of full age, who, after this chapter shall commence and take effect, shall be a resident and inhabitant of any town for one year, and the members of his family who shall not have gained a separate settlement shall be deemed settled in such town." And section 31 (id.) provides as follows: "No person shall be removed as a pauper from any city or town to any city or town of the same or any other county, nor from any county to any other county, but every poor person shall be supported in the town or county where he may be, as follows: "1. If he hath gained a settlement in any town in such county he shall be maintained by such town. * * ** "4. If such pauper be in a county where the respective towns are liable to support their poor, and hath gained a settlement in some other town of the same county than that in which he may then be, he shall be supported at the expense of the town where he may be, and the overseers shall give notice in writing to the overseers of the town to which such pauper VOL. LXIII 47 Sitterly agt. Murray. shall belong, or to one of them, requiring them to provide for the relief and support of such pauper." Then follows the provisions for determining the settlement in case of dispute as before herein referred to. The object and scheme of the statute seem to be to provide for the settlement of all persons under the poor laws, no matter what their previous financial condition may have been, and whether they were ever paupers before or not, and to fix the liability of the proper town for their support and maintenance whenever by misfortune or otherwise they should become a charge upon the public. This is the reasonable and natural conclusion to be drawn from the various provisions of the statute and from the language of the particular sections quoted. Funk had certainly gained a settlement under the statute in either Minden or Palatine, and one or the other is liable for his support after he became a pauper. It cannot be urged that from the peculiar circumstances of his case he had gained no settlement in either town. He could not have gained a settlement in Palatine, because he had not resided there a year. He had just previously resided in Minden over a year under all the circumstances that could establish his settlement there. If Funk had become sick and unable to provide for himself while residing in Minden at any time after the expiration of his first year's residence there, that town would undoubtedly have been then liable for his support. What difference can it make that he removed into the town of Palatine, and required assistance from that town as a poor person before residing there a year? I think none. It was Minden's misfortune, as well as Funk's, that he became sick and required help before residing in Palatine the period required by law to establish his legal settlement in the latter town. It is true Funk was not a pauper when he removed to Palatine, and never had been. But he was a poor person, though that even is of no particular consequence. He became a pauper after his removal to Palatine, and required and received relief as such. Section 29 of the statute before referred to applies to "every Sullivan agt. Farley. person "who shall be a resident and inhabitant of any town for one year, and the members of his family who shall not have gained a separate settlement. And they cannot gain a settlement in any town until they have resided therein for at least one year, whether such persons are paupers or not. When a settlement is once legally gained in any town it must necessarily remain there until one is subsequently established in some other town or county. The words, "such pauper," in subdivision 4 of section 31, do not qualify or change the signification of the words "every person," in section 29. They only refer to the subsequently changed condition of the person to a pauper. I am clear in my judgment that said Theodore Funk has never gained a legal settlement in the town of Palatine, but that he had gained such settlement in the town of Minden, and it still remains there, and that that town is liable for his support as a pauper since he removed to Palatine. The order and decision of the county superintendent must therefore be reversed, with costs. The counsel for appellant will prepare and enter the proper order. N. Y. COMMON PLEAS. MORTIMER SULLIVAN, respondent, agt. CORNELIUS FARLEY, appellant. Sheriff - Levy — When sheriff not liable as a trespasser in levying upon property exempt from levy and sale. Where the sheriff has levied upon property, unless it is shown either that he knew that such property was exempt from levy and sale under legal process, or a claim of exemption was made by or on behalf of the execution debtor to the sheriff, the sheriff is not a trespasser in levying upon property which, upon the trial, may be proved to be such, or if the execution debtor had claimed exemption, he would have had a right to have exempted from levy and sale. General Term, June, 1882. Sullivan agt. Farley. D. A. Spellissy, for plaintiff and respondent. E. P. Wilder, for defendant and appellant. VAN BRUNT, J.-Upon the argument of this appeal it was intimated that the case of Twinam agt. Swart (7 Lans., 263), required a reversal of the judgment, unless the rule laid down in the above case was modified or controlled by the cases of Frost agt. Mott (34 N. Y., 231), and Cantrell agt. Connor (6 Daly, 224). The reasons requiring a claim of exemption to be made by an execution debtor to the sheriff of execution are so well stated in the case of Twinam agt. Swart (supra), that it is not necessary to repeat them here, neither is it necessary to discuss the question, because such discussion would be but a mere repetition of the argument of the learned justice who wrote the opinion in that case. The cases of Frost agt. Mott and Cantrell agt. Connor, upon an examination of the same, do not conflict with the rule laid down in the case of Twinam agt. Swart. The most that can be deduced from the cases of Frost agt. Mott and Cantrell agt. Connor is, that where the sheriff knows that he is levying upon property which the statute exempts from execution, the execution debtor is not required to make the claim of exemption. It may fairly be inferred that in both of these cases the court found that the claim for exemption had been made, as in the statement of facts in the case of Frost agt. Mott it is stated that the execution debtor claimed the property sued for as exempt, and in the case of Cantrell agt. Connor there was positive evidence that the property sued for had been claimed by the execution debtor as exempt. It is true that there is an expression of opinion in that case that Frost agt. Mott was an authority for the proposition that a failure to claim exemption would not justify or protect the sheriff in wrongfully removing and disposing of the goods by law exempt from levy and sale under legal process. We are of the opinion, therefore, that the cases of Frost The People ex rel. Swinburne agt. Nolan. agt. Mott and Cantrell agt. Connor, are not in conflict with the case of Twinam agt. Swart, but may be reconciled with it; and that unless it is shown either that the sheriff knew that the property levied upon was exempt from levy and sale under legal process, or a claim of exemption was made by or on behalf of the execution debtor to the sheriff, the sheriff is not a trespasser in levying upon property which upon the trial may be proved to be such, or if the execution debtor had claimed exemption he would have had a right to have exempted from levy and sale. Judgment reversed. SUPREME COURT. THE PEOPLE ex rel. JOHN SWINBURNE agt. MICHael Nolan. Stay of proceedings—when should be granted pending an appeal to general term from order denying motion to make complaint more definite and certain, but allowing a bill of particulars. In regard to questions not absolutely settled by the court of last resort there is always so much doubt as to how they will there be determined that it is, as a general rule, safer and better for the tribunal which hears them in the first instance to give an opportunity for review before proceeding to enforce conclusions which may be overturned. Where, in an action in the nature of a quo warranto to try title to an office, the question which the appeal involves being the right of the defendant to have embodied in the complaint the alleged facts upon which an official canvass of the votes cast for such office is to be overturned: Held, that in view of the importance of the case, the unsettled condition of the practice, the need of the pleadings being passed upon previous to a trial and the affidavit of most respectable counsel that the appeal "is brought and will be prosecuted in good faith to an early decision," and that he "is of opinion that there is reasonable ground for such appeal," the stay should be granted (See S. C., ante, 271). Ulster Special Term, July, 1882. MOTION in behalf of defendant to stay proceedings pending an appeal to the general term from an order denying a motion |