
    The Overseers of the Poor of the Town of Vernon against The Overseers of the Poor of The Town of Smithville.
    A» adjudica tion, in an order of removal, that the pauper's legal settlement was in A. is tantamount to an adjudication that his last legal settlement was there, and the order is sufficient.
    Where a pauper has actually become chargeable to the town, there is no necessity to order him to remove to his last legal settlement, previously to issuing a warrant for his removal.
    The place of birth of an infant pauper is, prima facie, his place of settlement, but itmay be removed to the last legal settlement of the parents, when discovered.
    Where an order is made for the removal of a pauper from A. to B., from which order the overseers of B. appeal, but the overseers of A. take back the pauper, and the appeal is, consequently, never prosecuted, the order, although unre-versed, is not evidence that the pauper's settlement was in B.
    IN ERROR, on certiorari to the Court of General Sessions of the Peace, of the county of Chenango.
    
    On the 9th of November, 1816, two justices of Smithville, in the county of Chenango, made an order for the removal of William Chittenden, a pauper, of the age of eleven years and five months, from Smithville to Vernon, and adjudged that his legal settlement was in Vernon, 
      
       There was an appeal from this order to the Court of General Sessions of the Peace of the county of Chenango, which affirmed the order. At the hearing, the appellants excepted to the order, 1. Because the justices had not adjudicated that the last legal settlement of the pauper was in Vernon; and 2. Because it did not appear, by the order, that the pauper was ordered or directed to remove to his former place of settlement, before the justices issued their warrant for removal.
    *It appeared in evidence, that about twelve years ago, Truman Chittenden, and Lois, his wife, came to Vernon, and remained there a few months, were warned out of the town, and departed, not having gained a settlement in that town. During their residence in Vernon, W. Chittenden, the pauper, was born. In 1800, and the two succeeding years, T. Chit-tenden resided in Lisle, in the county of Broome. Seymour, who was collector of Lisle, in 1801, testified, that he could not positively say whether he collected a tax of T. Chittenden, but he thought it likely that he did. Lois Chittenden, the mother of the pauper, testified that her husband paid one year a tax of six shillings, and she thought that he paid it to Seymour. Beach, who was collector in 1802, testified, that- T. Chittenden was on his tax list; that he went to his house for the tax, and believed that he received it, though he did not recollect clearly, but he knew that he paid over the full amount of his tax bill to the treasurer.
    About 1813, Lois Chittenden, with her family, of which the pauper was one, was removed from the town of Cincinnatus to the town of Lisle, by an order of two justices. The overseers of the poor of Lisle appealed from that order, and gave notice of the appeal to the overseers of Cincinnatus, who, thereupon, sent for her and her family, and brought them back to Cincinnatus. In consequence of this, the appeal was not prosecuted, nor the order reversed. It also appeared that, previous to making the order of removal by the justices of 
      Srnithville, L. Chittenden and her family, including the pauper, }ja¿ been warned to depart.
    The case, on. the return to the certiorari, with the exceptions taken, was submitted to the court without argument.
    
      
      
         1 Revised Statutes, 691, &c.
      
    
   Woodworth, J.,

delivered the opinion of the court. I will first consider the exceptions taken by the appellants to the form of the order. The justices “adjudge that the legal settlement of the pauper is in Vernon” This is sufficient; legal settlement, and last legal settlement, are the same thing, because, by every new settlement, the preceding one is discharged. (2 Salic. 473.)

The second exception is not tenable ; for whatever might be the construction given to the statute, in a case where it ⅜ stated that the pauper was likely to become a charge, there is no ground for the objection, when it is alleged, that the pauper had actually become, chargeable; in this latter case, the justices need not order the pauper to remove to his former settlement previous to issuing a warrant; for the statute only requires such previous order in cases where the pauper is likely to become a charge, not where he is actually chargeable.

The pauper was born in Vernon, which is, prima facie, his place of settlement, and remains so until the settlement to which he is entitled, by parentage, is discovered, (14 Johns. Rep. 334, Delavergne v. Noxon.)

The settlement of a child is where the father was last settled ; if the father has none, the child must go to its mother’s settlement. It is not pretended that the father or the mother of the pauper ever gained a settlement in Vernon; yet that town is chargeable, by reason of the birth of the pauper, unless it can be shown, that the parents gained a settlement elsewhere. This has been attempted in two ways ; the appellants contend, that the order of removal made by the justices of Cincinnatus has not been reversed, and that this is conclusive, that the pauper was settled in the town of Lisle. It will be admitted, that an order not appealed from, is conclusive as to the place of settlement; but that is not this case; an appeal was made by the town of Lisle, and notice given thereof. The overseers of Cincinnatus sent to Lisle, and brought back the pauper, preferring that course to a trial on the question of settlement ; for this cause the appeal was not further prosecuted. The order made by tbe justices of Cincinnatus must be considered as abandoned, and at an end, and that by the consent of both parties. It was the same as if it never had existed, and, consequently, Lisle was not concluded by it. The case of The King v. The Inhabitants of Lanchydd (Burrow’s Settlement Cases, 658.) is in point.

It is, lastly, contended, that Truman Chittenden, the father of the pauper, paid taxes for two years in the town of Lisle, by which he gained a settlement; the testimony on this point is satisfactory as to the payment of taxes for one year, but doubtful and uncertain as to the other. A settlement %y payment of taxes, is gained by being charged with, and paying such taxes. (14 Johns. Rep. 88.)

Ira Seymour, the collector, has no distinct recollection that Truman Chittenden ever paid a tax to him, although he thinks it likely: he has no knowledge that he was charged with the payment. Lois Chittenden recollects that her husband paid a tax of six shillings one year, and thinks it was to Ira Seymour; but whether her husband had ever been assessed, or whether the six shillings paid, if paid to Seymour, was a part of the public taxes of the town, we are left to conjecture. It would be manifestly unjust, from such uncertain testimony, to draw the conclusion, that Truman Chittenden ever gained a settlement in the town of Lisle.

The order of Sessions must, therefore, be affirmed.

Order of Sessions affirmed.  