Lord Thankerton:-

These appeals are taken against two decrees of the High Court dated 8th August 1933. Two questions are involved, the first being the question of res judicata. The High Court declined to allow the appellant to go into the question of res judicata on the ground that it had not been properly raised by the pleadings or in the issues, particularly in the issues. It seems to their Lordships that the High Court was right in this view, because it was necessary for the appellant, if he were going to make use of the judgment in the suit of 1900 as res judicata to identify the subjects in dispute in the present case with the subjects which in that case were held to belong to the Rajah and not to the tenants.

The other point is a mere matter of procedure, the question with regard to the use of Ex. 17 as secondary evidence. That does not appear to their Lordships to be a question of fact, but rather a question of procedure and the orders made by the High Court were to remit the suits to the Court below for re-hearing after giving the plaintiffs in title suit No. 68 of 1929 an opportunity of calling for the original of Ex. 17 and considering it or, if not produced, then consideri