
    Long v. Hitchcock.
    In slander, defendant appeals, and after appeal dies, suit abates.
    Tried before Judges Burnet and Sherman, in Scioto county, 1827.
    This was an action of slander, in which the plaintiff obtained a verdict and judgment in the common pleas. The defendant gave notice of an appeal, and perfected the appeal bond within the time ■directed by the statute, and died before the return of the transcript to this court.
    Tract, for the plaintiff,
    moved to docket the case, and dismiss the appeal. He contended that the appeal was the suit of the appellant, and that his death abated the appeal only. He cited 2 Ohio, 517; 2 Bac. Abr., title (a); 3 Hen. & Mun. 217: 2 Hen. & Mun. 137, 211.
   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, and 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.  