By the Court :
The cases cited in support of the motion are not applicable. 'There is no similarity between the appeals to which they refer, *259and the appeal given by our statute. The defendant in this case had perfected his appeal before his *death. When that was done the verdict and judgment were vacated, and the cause was ' considered as transferred to this court, for trial on its merits. The death of the party under these circumstances produced the same effect as if the verdict had been set aside, on motion in the court* below, and a new trial granted; in which case there is no doubt but that the suit must have abated by the subsequent death of the defendant. If the defendant had died after the notice, and before the appeal was perfected; or if the appeal had been irregularly taken, the verdict and judgment would have remained in force, and if a transcript in such case had been sent here the motion might have been proper. But the case now stands as if there had been no trial, and as the cause of action does not survive at common law, and is not saved by the statute to prevent the abatement of suits, the motion can not be granted.
Suit abated.