¶1The opinion of the court was delivered by
¶2I. It is claimed that the proceedings are defective .for not containing a certificate of the overseer of the poor of his intention to prosecute or control the proceedings, according to sec. 13 of chapter 71 of the Compiled Statutes.
¶3But that section was a portion of the Revised Statutes of 1839, and has exclusive reference to such~prosecutions as were then allowed by the existing statutes. The present proceedings are based upon the statute of 1843, and are of a totally different character from anything in use before that time. This proceeding is originally instituted by a complaint of the ove2’seer of the poor of the town liable to support the child, against the mother, and she is to be examined before the justice, and the examination taken down in writing, and the person charged by her to be brought before the justice, and proceeded with as in other cases, except *353that the prosecution is exclusively on behalf of the town, and in the name of the town, or the overseer, which is the same thing. But this statute required no certificate, and the section of the former statute on that subject will not apply to this proceeding, having reference only, in its terms or intention, to prosecutions in the name of the mother. It would seem very needless to require a certificate of the overseer of his intention to control a prosecution in his own name, and aver which no one else had any control whatever.
¶4II. The settlement set forth in the plea in bar is not different in legal effect from that urged in Sherman v. Johnson, 20 Vt. 567, and held bad. The consent of the overseer of the poor of the town where the mother resided could avail nothing, unless such overseer could bring the prosecution, or control it if brought by the mother. And to do that he must be the overseer of the poor in the town liable to become chargeable for the support of the child. And as the child took the settlement of the mother, and her settlement was not in Tunbridge, the consent of the overseer of that town could not render the compromise binding upon the town of her legal settlement.
¶5III. The legal settlement of the mother was in West Windsor, derived from her grandfather, if the warning out was defective. The decision in the case of Barre v. Morristown, 4 Vt. 574, seems conclusively to show that it was so. The return of the officer in' this case seems quite as defective as in that.
¶6The order of removal too, unappealed from, is conclusive of the settlement.
¶7Judgment affirmed.