Peck, J. delivered the opinion of the court. This proceeding is not in character with that precision and certainty required in legal proceedings. The object in sending down an issue of fact to be tried by a jury, is to assist the court in a case where, from the nature of the inquiry, the mind of the Chancellor would otherwise remain in doubt. The necessity of so doing in this case was settled by this court, and the Chancellor could not dispense with it. When the fact was found, it should have appeared before the Chancellor by the record.
The memory of the Judge before whom the issue was tried, could not be substituted for that which nothing but record evidence should prove. The decree must be reversed, and a trial de novo of the issue had, which when regularly certified to the Chancellor, will be the basis of the decree. Decree reversed.