The opinion of the court was delivered by
Ross, J.The court has invariably required a full and literal compliance with the statute in the service of warnings under the act of 1797. The town o| towns to be affected by such warning, were not made parties thereto, and could only judge of the sufficiency of the warning and return, from what appeared of record in the town clerk’s office of the town instituting the proceedings. The whole proceeding was in invitum, both as to the persons and towns to be affected thereby. The defeat of the acquirement of a settlement by warning, was a right conferred wholly by statutory proceedings, which must be strictly complied with, to secure to the town initiating the proceedings, that right. The warning must be served by the delivery of a true and attested copy thereof to the person or persons to be warned, with the officer’s return thereon ; “ or by leaving such copy at the house of his, her, or their usual abode, with some person of sufficient discretion then resident there*477in.” “ And if there be no such person with whom such officer can leave such copy, he shall then lodge the same at the house of his, her, or their then usual abode, in such situation as the defendant or defendants (the person or persons warned) will most probably receive it; and the maimer of such service shall be particularly expressed in the return made by such officer.” Judiciary act 1797, § 26. The right of the officer to adopt the third method of service, by leaving a copy at the house of the then usual abode of the person to be warned, depended upon his inability to serve' it in either of the first two methods-named. He was authorized to resort to the third method, only in case he could not make service by any of the other two methods. The officer’s return must show every material fact necessary to show a complete legal service. Reading v. Rockingham, 2 Aik. 272; Marvin v. Wilkins, 1 Aik. 107 ; Barre v. Morristown, 4 Vt. 574 ; Barnet v. Concord, 4 Vt. 564. It would seem, therefore, to follow, that the officer must in his return state his inability to make service by either of the first two named methods, in order to make a service by him in the third method, lawful. The court has invariably refused to make any presumptions in favor of the legality of the service. Admitting all that appears in the officer’s return set out in the exceptions, and William Jones, 5th, the person warned, might have been then residing at the place where the copy was left. The officer makes return that he loft the copy “ at the last and usual place of abode of the within named William Jones, 5th.” If there is any presumption to be made, it is that William Jones, 5th, was then at his last and usual place of abode. The return also fails to show that no other person of sufficient discretion to receive the copy, was then resident therein, as the last and usual place of abode of William Jones, 5th. If it ought to be presumed that the officer lawfully had the right to resort to the third method of service, simply from the fact that he did resort to it, we think, then, he has failed to show by his return that he complied with the statute. The court will not presume from his statement, that he left the copy on the table, without stating where, at or in the last and usual place of abode, the table was, that it was left in such situation that William Jones, 5th, would most probably re*478ceive it. His return might be true, and he not be liable for a false return, and the table stand outside of the entrance door of said abode, or on the piazza (if said abode had a piazza), where the wind would carry it away as soon as it was laid there ; or the table might have stood in the most secluded or exposed portion of the abode of William Jones, 5th, where he would not be liable to receive it. The statute required the officer to particularly express the manner of such service in the return, that the town to be affected, and the court before which such return might come, might judge whether the copy was left in such situation that the person warned would be most likely to receive it. The officer’s return is clearly insufficient. The judgment of the county court is affirmed.