*630The opinion of the court was delivered by

The first reason assigned for the reversal of" the judgment of the Common Pleas brought up by this writ is that that court refused to non-suit the plaintiff' because the-judgment in the court for the trial of small causes was not in accordance with the verdict of the jury there rendered. This reason is insufficient. When the cause is in proper condition before the Common Pleas for a trial upon the merits, and the-appeal has been regularly taken and prosecuted, it is the duty of that court to retry the cause, and not to pass upon the legality of the procedure in the court below. Martin v. Thompson, 5 Halst. 142; Vannoy v. Givens, 3 Zab. 201; Robins v. Martin, 15 Vroom 368.

The second reason, that the justice’s judgment was rendered on a day when he had no jurisdiction of the cause, is to be-disposed of on the same ground. For such an error the defendant below had a choice of remedies, by appeal for a new trial, or by certiorari for a mere legal review. Ritter v. Kunkle, 10 Vroom 259. He selected the former, and it was accorded to him.

The third, fourth and eighth reasons are directed to the-court’s charge and refusal to charge in the Common Pleas, and the sixth and seventh reasons complain of its rulings on the-admission of evidence.

There is nothing in the state of the case before us to show that these reasons are well founded in fact. Neither the charge nor any request to charge, nor any ruling upon testimony, is. exhibited upon the record.

The fifth reason is that the plaintiff was precluded from recovering by reason of a prior judgment between the same-parties upon a material issue in the cause. Whether this former judgment should estop the plaintiff depends upon whether-it was rendered on the same issue as was involved in the pending controversy. The record of the former suit throws no-light on this point, and therefore it had to be decided by the jury on appeal, according to the extrinsic testimony. Only part of the testimony given in the Common’ Pleas is certified! *631to us, and hence we cannot say that there was no evidence on which the jury could determine that issue in favor of the plaintiff The Common Pleas refused to disturb their verdict, and in the absence of any indication to the contrary, we must assume that the court was guided by correct legal principles in so doing. Every intendment must be in favor of the judgment. Westcott v. Garrison, 1 Halst. 132.

Let the judgment be affirmed.