JUDGMENT

Sanderson, C.J. - In these eases the issue which is material for us to consider was framed in the Court of first instance in this way: "Have the plaintiff and his co-villagers their alleged right of way by necessity, grant or prescription." Evidence was taken with regard to that issue. When the cases came before the learned Judge in the First Appellate Court, he came to the conclusion that the issue which was really material had not been stated in the Court below; and consequently he framed the issue himself, which was in these terms, "Have the plaintiffs acquired the right of user over the disputed path by virtue of any custom." He purported to act under Order XLT, Rule 24, Civil Procedure Code, which I need not read; but he purported to deal with it as the re-settling of the issues; and, thereupon, as he thought, having re-settled the issues, he dealt with the cases upon the evidence as it stood, without taking any further evidence or remanding the cases for further evidence. In my judgment, with great respect to the learned Judge, I think he made a mistake. I do not say for a moment that he made a mistake when he said that this was the real issue between the parties. Wha