The chancellor delivered the opinion of the court:

By the Court:

In support of the rule granted in this case, it has been contended by defendant’s counsel, that the writ of error had abated by the death of the plaintiff in error, and that it was the duty of this court, on that fact being suggested and admitted, to have remanded the record to the court below. To maintain the correctness of this position, he has relied upon the rule of the common law, relative to the abatement of suits and writs of error, and has insisted that the constitutional provision does not reach this case.

Independent of the statutory provision, in England the death of a party, if a sole plaintiff or defendant, necessarily abated the suit, either original or in error; if several parties, plaintiffs or defendants, and the interest joint, the same result followed from the death of any one of the parties. This defect was remedied by the statute of 8 & 9, William 3d, ch. 4, sec. 7. The words in the English statute are, “ any action or writ,” which have been determined by judicial construction to include writs of error and cases pending thereon. In the constitution of the State of Delaware, art. 6, sec. 18, the words used are different, being, “ no suit in chancery or at law.”

It has been aliedged, that after the assignment of error, no joinder having been actually entered on the record, prior to the suggestion of the plaintiff’s death, there was no suit pending. The decision of the question submitted to our consideration will, therefore, first require that we ascertain whether, as this case stood at the time of plaintiff’s death, there was an existing suit. If there was a suit, then it would be difficult to understand how it could be a casus omissus, *411 as the words of the constitution are, “ no suit, in cases where the cause of action survives.” We will then inquire, what was the situation of the case in error after errors assigned. The writ of error is no more than the process issuing from the Court of Errors and Appeals, requiring the inferior court to send up the record, after final judgment; for until the parties as suitors, have finished their case in the inferior, they have no right to ask the judgment of the-Superior Court. When the record is sent up, the writ of error has performed its office; the plaintiff in error, having incepted the proceeding and become a party in the Court of Errors and Appeals, the citation or process of the court is awarded to obtain the appearance of the defendant The parties being before the court, and the record of the inferior court brought up, the plaintiff, by the assignment of errors, asks or demands the judgment of the court upon the matters he alledges as erroneous in the judgment rendered below. If, at this stage of the case, it be not a suit pending in error, I am at a loss to define it; as, in the court below, after declaration filed, you have a suit, although it be not at issue, yet it is a suit pending; so here, although the defendant had not joined by adding on the record the words “ in nullo est erratum,” which might be required before the case could be heard. Yet this being necessary to make up the- issue in the suit, renders it apparent, that they are not to constitute the suit itself; for it must exist before these words can be introduced into it. I think it is, therefore, manifest that the suit in error is altogether distinct and different from the issue or issues which the pleadings present for the judgment of the court. Hence it does appear to my mind, unquestionable, that after the assignment of errors, and, I would say, after the record is brought up and the parties have appeared, although the assignment of errors has not been made, the suit in error is pending. t

It is admitted in the case before us, the cause of action, being a judgment, survives; then it follows that, according to the very words of the constitution, the death being suggested, the proper party must be made, unless the circumstance of the case being in the Court of Errors and Appeals, prevents that court making a party on its own record, and to a suit pending before it. I apprehend, it can scarcely be thought necessary to pursue the subject further, as we are well satisfied, in the condition the cause was at the death of the plaintiff in error, there was a suit at law; (for it was not in equity,) and the constitution has provided for all cases, either at law or in equity, and has not confined the remedy to any particular court, the words of the 18th section being, “by the death of any party, no suit in chancery or at law, where the cause of action survives, shall *412 abate, but until the legislature shall otherwise provide, suggestion of such death being entered of record, the executor or administrator of a deceased petitioner or plaintiff, may prosecute the said suit; and if a respondent or defendant die, the executor or administrator being duly served with a scire facias, thirty days before the return thereof, shall be considered as a party to the suit, in the same manner as if he had voluntarily made himself a party ; and in any of those cases the court shall pass a decree or render judgment for or against executors or administrators, as to right appertains.”

As the constitutional remedy, in its mode of application, varies according to the relation in which the party deceased stood as plaintiff or defendant, and in one case authorizes the admission of the personal representative on suggestion, and in the other requires a scire facias to issue, it does appear to me conclusive upon the question as to the court in which the party must be made. For, as in the case we are considering, it often happens that the plaintiff below becomes the defendant in error, the parties litigant changing sides. If then, the remedy is to be properly applied, it can only be done in the court having possession of the suit, on whose record the suggestion is made, and where the parties’ true position, as to the cause pending, is apparent.

I would here, in corroboration of the opinion the members of this court unanimously entertain upon the question, refer to the case of Summerl vs. Dauphin’s adm'r., in which the High Court of Errors and Appeals of this state, by an express order in the cause, directed the party to be made. The case may be found on the records of that court, from which it appears that, August 6th, 1814, the death of Joseph Summerl was suggested and admitted; and it was ordered by the court, that the personal representatives of Joseph Summerl, deceased, when duly constituted, be made parties. And, July 25tfa, 1814, Isaac W. Norris, administrator c. t. a. of Joseph Summerl, deceased, was admitted a party to prosecute the appeal.

From the best consideration we have been able to give the questions submitted in the argument of the counsel, we are of opinion, that the rules granted to show cause, should be discharged.