Mr. B. Hardin, for the defendant in error, moved to dismiss the writ of error in this case, which was a real action, upon a suggestion of the death of the demandant and plaintiff in error, pending the proceedings in this Court. He insisted that, at common law, the death of either party, any time before final judgment, would have abated the suit; (Tidd's Pr. 1024; Bac. Abr. tit. Abatement); that the judiciary act of 1789, c. 20. s. 31. made no provision for this case, since it merely extended to the case of the death of parties, in personal actions, before judgment; and that the statute 17 Car. II. c. 8. and the act of Kentucky, showed the sense of Parliament and the local legislature, that real actions abated by the death of the parties, before judgment, upon writ of error on judgments already rendered.
Mr. Justice STORY delivered the opinion of the Court.