The legal settlement of Sarah Waring appears to have been in Stamford, in the state of Connecticut ; and her residence in New-Tork was not of that kind, as to acquire a legal settlement there. This, however, does not touch the question arising in the case, which is, whether the justices of New-Tork, where the child was born, can make an order of filiation, when the mother has no legal settlement there : and it is supposed that they cannot, because the settlement of the bastard follows that of the mother.
The first section of the act for the relief of cities and towns from the maintenance of bastard children, expressly gives the power to any two justices of the peace of any . city or county, upon examination of the matter, to make an order for the relief of the city or county within which any bastard shall be born. The removal of paupers is only an auxiliary remedy, and it was competent to the overseers, to apply for the order of filiation. The appellant is, at all events, bound to contribute to the sustenance of this illegitimate child. In my opinion, the justices had the power to make the order they did, and it must be affirmed.
Van Ness, J. and Thompson, J. were of the same opinion.
Kent, Ch. J.I am also of opinion, that the order must be affirmed, but for this reason principally, that as the child was born in Nexv-Tark, and the mother had no settlement *17Within the state, the child must be adjudged to be settled where it was born. The law, declaring that every bastard child follows the settlement of the mother, applies only to cases where the mother has a legal settlement within the state. If she has none, the child must be chargeable to the town where it was born, and it cannot be sent out of the state. It becomes a native citizen, by birth, and is entitled to protection, as well as bound to allegiance»
Order affirmed»-