Now in ascertaining what were the issues determined judicially it is proper to look beyond the record. See per Isaacs J. in Gray v. Dalgety & Co. Ltd. [5] . You cannot show that issues necessarily involved in the conclusion were not found. You cannot say that, though as a matter of law the conclusion could not be reached except by passing upon certain issues, yet one or more of them was not passed upon. You cannot do so unless it so appears upon the face of the record, or in the case of courts where there is no record, unless it so appears from the course of procedure by which in such a court the character of the claim and the answer is determined. It should be added, however, that the parties may definitely agree to suspend, defer or otherwise eliminate a necessary issue and then it is not covered by the determination. That is shown by Hoysted's Case, the report of which in the Privy Council [1] , should be read with the report of the decision in this Court [2] . But there is no question of this having been done in the present case. What the applicant needs to do here is to exclude the possibility, a merely logical possibility, that the foundation of the verdict was the denial of an element that on the facts was not denied and could not be denied. Indeed it was in truth an element of an entirely notional character which factually could have no significance and accordingly passed unnoticed. It is quite consistent with the indictment and the verdict to exclude the possibility in question. There is no reason why, in order to ascertain the issue which in truth was found, matters of this kind should not be taken into consideration by the court when deciding the validity of a plea of issue estoppel. It is by no means the same thing as going into evidence as to the course of the previous trial for the purpose of showing that what in point of law must be covered by the verdict or finding was in fact not considered at all. That is to run counter to the very principle of issue estoppel, which is to treat an issue of fact or law as settled once for all between the parties if it is distinctly raised and if the judgment pronounced implies its determination necessarily as a matter of law. All that the applicant need do here is to add to the record certain information which makes it possible to see what issue it was that the finding must necessarily cover. That information makes it clear enough that the finding must cover the issue which in fact is one of rape or no rape. To say that the jury never meant to negative rape is to overlook the essence of the error made on the previous trial. The jury were in effect told that it was not enough if there was a rape, it must be a rape done with malice. Doubtless it was a curious conception. But if it is assumed that they followed and acted upon the direction, what the jury may be supposed to have found is that there was not a rape done with malice. To speculate why a jury finds manslaughter on an indictment of murder is often fruitless, and in this case the direction may have had no further effect upon the result than to encourage the returning of a verdict of manslaughter. But let it be assumed that in fact it meant that there was no rape done with malice. That only meant that, having availed themselves of an erroneous reason supplied by the judge's charge, the jury found a verdict upon the very issue which under the plea of not guilty the indictment for murder, properly understood according to law, presented to them as an issue of rape or no rape.