March, 1843. Hill WASHINGTON, previous to the issuing of the writ in the present case; and that it had been proved in the trial of this suit, before the justice, by the testimony of the individual who served the writs in both cases, "that he came out of Roger's tavern 'with Dunlap, and told him that the old case was discon'tinued, and that they had got a new writ for him, and that 'he then read to the defendant the second writ, and he '(the defendant) went and got bail." v. Dunlap. The court decided that it did not appear that any such suit was pending at the commencement of this suit, as would abate the same, and rendered judgment for the plaintiff; to which the defendant excepted. J. A. Vail and W. K. Upham, for defendant. I. We insist that Willard had no authority to give the notice to Dunlap. To authorize him to give the notice, there must be something more than his deputation to serve and return the writ. Wainwright v. Webster, 11 Vt. R. 576. II. If Willard was authorized to give the notice, the plaintiff can derive no benefit from it, unless the first suit was in fact discontinued. Again: The notice should have been explicit and certain, so that no advantage could have been taken of the defendant if he had relied upon it. III. The notice should have been in writing, and signed by the plaintiff or his attorney. Verbal notice was not sufficient. Wright v. Doolittle, 5 Vt. R. 390. The reason of the rule, that the pendency of a suit will abate another action, for the same cause, and between the same parties, is, that the second suit is unnecessary and oppressive. Morton v. Webb, 7 Vt. R. 124. If the first suit had been discontinued before the entry of the suit at bar, it would not help the plaintiff. On principle, the second suit is vexatious, if the first one were pending at the time the second one was commenced." Parker v. Colcord, 2 N. H. R. 36. O. H. Smith, for plaintiff. 1. In this case the county court have found the fact that no such suit was pending at the commencement of the present action, as would abate the same; or, in other words, that the suit described in the defendant's plea was not pend A fact WASHINGTON, ing at the commencement of the present action. 2. If it can be said that the case presents any question for this court to decide, it can only be, whether a suit once commenced, can be discontinued by the act of the plaintiff, by giving notice to the defendant. We contend that the plaintiff in any action may discontinue the same by giving notice. The service of a writ is considered as the commencement of a suit, in general. The object of the service of process is to give notice to the defendant to appear in court. It would be absurd to say that the notice could not be countermanded. See Haskell v. Whitney, 12 Mass. 47; Mead v. Armes, 2 Vt. R. 180. No case can be found, it is believed, establishing a doctrine so inconvenient and mischievous in practice, as the one contended for by the defendant. The opinion of the court was delivered by REDFIELD, J.-The only question reserved in this case is, whether the county court decided correctly upon an issue of fact, joined to them, upon the traverse of a plea in abatement, of the pendency of a former suit, at the time the writ in this action was served. The suits must have been both pending at the same time, or there is no ground of pleading in abatement, on that account. If that is not the case, there is nothing vexatious. If they were both pending at the same time, the former suit will abate the latter, but not vice versa. In this state, we have adopted the rule, which obtains in Connecticut and some of the other states, that if the party bring a defective suit, he may, upon discovering the defect, discontinue that suit, and bring another, and this shall not be considered vexatious. And if the party gives notice of discontinuance, and brings fresh suit, in the absence of all proof to the contrary, it will be presumed to have been for defect in the former March, 1843. Hill v. Dunlap. WASHINGTON, process, else he could have had no motive for the proceed March, Hill v. Dunlap. As this was an issue of fact, joined to the county court, we cannot well revise their decision, unless the testimony was illegal, or of a degree which was inadequate. For, if the testimony was of a quality to have been submitted to a jury, the finding of the county court upon it is not subject to reversal here. Hence, although it might be argued that the person giving the notice was not authorized so to do, yet, if the parties acquiesced in his authority, they being present or near at hand, when the fact of his authority might have been easily inquired into, the county court might well have inferred he had such authority. The same may be said in relation to the terms in which the notice was communicated. It is true they were rather indefinite, but no doubt in regard to their import being expressed at the time, it might be a fair inference that they were, in fact, understood by the defendant as referring to the former suit. The only question, then, which arises in this case, is, whether notice of discontinuance, being without writing, makes the second suit vexatious. There is no other case in which it has ever been held, that there was a necessity for notice of discontinuance to be in writing, except to prevent a claim for costs, under the statute, which provides, that, if the party shall discontinue his suit, he shall be liable to pay the other party "reasonable costs." And the decision to this extent is rather making law, perhaps, and should not be extended. But even when the party gives notice, orally, of discontinuing his suit, the suit is none the less discontinued, because the other party may be entitled to costs. It is a matter of discretion with the court when costs shall be allowed. They have said they will not allow them when notice is given in writing. But if the notice is oral, the suit is none the less discontinued, and if the party thereafter proceed in it, and take judgment as by default, he will be liable to have it set aside by audita querela. If the defendant have incurred costs which are not tendered, he will be entitled to claim them; and so, for the costs of attending at the time and place of court, if no writing is given for his protection. Still the former suit was discontinued from the time of the notice; and had the party, after receiving such notice, disregarded 1843. it, and summoned witnesses, he could not recover for their WASHINGTON, March, attendance or travel. And this second suit is not, in any sense, to be considered vexatious, because the notice was not in writing, especially when the defendant asked no writing for his security, and did not object to the sufficiency of the notice. Judgment affirmed. Grant v. Parham. PHEBE GRANT v. WILLIAM PARHAM. A widow may bar her claim to dower in a particular lot by a quit-claim deed thereof, executed before her dower has been assigned, in which she covenants that she will have and claim no right to the quit-claimed premises. THIS was an action of ejectment for about twenty acres of lot No. 11, in the 12th range in the town of Berlin. Plea, not guilty, and trial by the court. It was admitted, on trial, that the plaintiff was entitled to recover, unless defeated by the following facts. Azariah Grant, the husband of the plaintiff, died, seized and possessed of the premises in question, in the month of April, 1825. On the 14th of October of the same year, the plaintiff conveyed, by deed of quit-claim, executed in due form of law, all her right and interest in, and to, the whole of said lot No. 11more particularly her right of dower-to one Edward Brown, under whom the defendant claimed title; covenanting, in said deed, that she would have and claim no right in or to the quit-claimed premises. On the day of 1826, the plaintiff petitioned the probate court that dower might be assigned her out of that part of the said lot, of which her husband died seized. A committee was appointed, who set out the premises in question, which were duly assigned to the plaintiff, as dower, on the 14th of July, 1826. Upon these facts the court rendered judgment, pro forma, for the plaintiff; to which decision the defendant excepted. H. W. Heaton & C. Reed, for defendant. I. The first question arising is, whether the plaintiff had, before her dower was "set out and ascertained," such an interest in the estate as could be legally conveyed. WASHINGTON, March, 1843. Grant v. Parham. By the common law, and the laws of most of the states of the Union, the widow is entitled to dower of the third part of such lands and tenements as were the husband's, in fee, at any time during the coverture. After the death of the busband, the widow's right to dower is said to be consummated; but, at common law, and in those states where the statutory provisions are in accordance, the current of authorities go to show that this right rests in action. By the assignment, the widow acquires no new freehold, but holds, in continuation, the husband's estate, and by relation, is considered as holding from the time of his death. Vermont and Connecticut are the only New England states in which the common law rule has been departed from. In both these states the widow is entitled to one third part of the real estate of which her husband died seized, as dower. Dower, then, by peculiar institution in these states, is something different from dower at common law, as is evident by the practice in both, and judicial decision in the latter. The statutes of the two states are the same in substance and differ but little in phraseology. Slade's R. S. 347, §71 & 72; Conn. R. S. title, Dower, 180. It has been held in Connecticut that the estate in dower, after the death of the husband, immediately vests in the widow, in common with the heirs; and the assignment is a mere severance of the common estate, and only secures the right, which was as complete before as after. 1 Swift's Dig. 85; Stedman & Gordon v. Fortune, 5 Conn. 462. If the statute of 1821, in force at the time of the plaintiff's conveyance, should receive a similar construction, it would follow, by necessary implication, that the plaintiff had an interest in the estate, subject to sale and transfer. II. It is insisted that the plaintiff's deed of release should bar her from a recovery in her own right, even admitting that, at the time of executing the same, she had merely a right of action. Cox v. Jagger, 2 Cow. 638; Jackson v. Vanderhaven, 17 Johns. R. 168; Jackson v. Aspell, 20 Johns. R. 413. This right may be lost, without the formality of a conveyance; as, for instance, by an award. 2 Cow. 638. So by a written agreement in pursuance of an award. Shotwell v. Sedem's heirs, 3 Ohio R. 5. So a widow will be barred, |