¶1In Equity. In a proceeding purely equitable commenced prior to the taking effect of the Revision of 1860, the cause comes before us for hearing de novo. And therefore the testimony and not simply the facts found by the Court below should be sent up before we can re-examine the case.
¶2This case was heard upon oral and documentary evidence upon the issues joined, but what the evidence was we are not advised. Parties are not bound by the facts found in such cases, but may insist that the record should contain the evidence, and that this Court should pass upon it de novo.
¶3If it is insisted that the action was commenced under the Revision (and the record leaves the matter in some doubt) then it is answered that it is clearly one of the causes which should have been tried in the first of the methods provided for in § 2999, et seq., and no consent of the parties tó try it *381in the second method was entered- of record, or filed in writing as contemplated by § 3001. If tried in the first method, therefore, (and under the law it was not otherwise tried,) then all the evidence should have been sent up that we might try it “ on both the law and the facts as apparent of record.” (§ 2999, Rev. 1860, subdiv. 3.)
¶4Without, therefore, discussing the points made by appellants (which from the views above expressed, are not legitimately before us) we conclude that we cannot disturb the decree below.