¶1— On the application of the defendant below, in a previous suit between the parties to this suit, the court ordered a new trial to be granted, unless the plaintiff in that case, who was also the plaintiff below, in this, would enter a remittitur, as to a part of his recovery in that action. The order of the court was to this effect: “That unless the plaintiff (now de*281fendant in error) remit all his damages but throe hundred dollars.; let a new trial be granted; which is done on the ground, that all over that amount is considered'to have been assessed for the corn mentioned in the declaration. If the plaintiff remits, it is understood that no part of his remaining damages is for the corn mentioned in the declaration.”
¶2Pursuant to this order of the court, the plaintiff remitted all his damages but three hundred dollars; and the question is, whether the remittitur so entered, will preclude the plaintiff below from maintaining this action, which is brought for the value of the corn.
¶3It is a settled rule of law, that no one shall be permitted to litigate the same matter twice. If the question be submitted to a jury, no matter how insufficient the evidence may have been to maintain the issue, no action can afterwards be brought for the same demand. The question in such cases always is, whether the matter in controversy was a part of the plaintiff’s demand in the former suit, and submitted to a jury. (Brockway v. Kinney; 2 Johns. Rep. 210: Seddon v. Tutpot; 6 Term. Rep. 607.)
¶4This case, however, differs from the common question of a former recovery. Here, there is no doubt that the matters controverted in this suit, were submitted to the jury, who tried the former suit between the same parties: but the order of the court, directing a new trial to be granted, unless the plaintiff remitted all the damages which the jury rendered for the present cause of action, certainly places this question in an entirely new aspect.
¶5The reason of the rule, above stated, fails entirely in such a case as the present; for surely, the remittitur entered, by direction of the court, is entitled to the same weight, as the voluntary entry of a nolle prosequi, before a verdict.
¶6It may be said, that the remittitur was the voluntary act of the party making it; but we consider, that, in effect, it was done at the instance of the defendant, in the first case. By his application for a new trial, he impliedly, in advance, consented to such terms, as the court should impose. The court direct, a *282new trial to be granted, unless the plaintiff remits that portion of the recover}?, of which-we must presume, the defendant had complained. It is added, by the court, “if the plaintiff remits, it is understood that no part of his remaining damages, is for the corn mentioned in the plaintiff’s declaration.”
¶7To permit the plaintiff in error now to say, that there has been a former trial of this cause, would be doing the greatest injustice;- and as no authority has been produced, sanctioning such a principle as the one now contended for, we are constrained to think, that the law is correctly laid down by the Circuit Court, that under the circumstances, the remittitur forms no bar to this ac~ tion.
¶8But in deciding, that there could not be a verbal submission to arbitration, of a matter not in litigation, the eourt erred.
¶9It is probable that the court, in its judgment, was influenced by our statute relating to awards: (Aik. Dig. 31.) A submission to award, at common law, may be either by “word or deed,’r (Bacon’s Ab., title, Abitrament and Award,) and we are very clear, that it was not the intention of the' Legislature, in the act referred to, to abolish, or in any manner to interfere with awards at common law. The manifest object of the Legislature, was to encourage the settlement of controversies, in this cheap and friendly mode, by giving an effect to an award made in the mode pointed out by the statute, which it would not have at common law; but no conceivable reason can be assigned, why the Legislature, should have deprived the citizen of his right, to settle a controversy by arbitration, in the mode known to the common law.
¶10The charge of the court, therefore, “that a verbal submission toabid'e by the award of arbitrators, was not binding, unless assented to, after the award was made,” was wrong. The charge should have been, that, if the jury believed, from the evidence, that there was a submission entered into by the parties, to abide the award of arbitrators, touching the matter in controversy, in this suit, the award made, pursuant to such submission, there being no revocation of the authority previous to the making of *283the award, was binding on the parties thereto, although such submission was notin writing, but merely verbal.
¶11It is true, that an award may be impeached for matters dehors the submission; such, for example, as gross misconduct in the arbitrators; fraud; want of notice of the time of making the award, &c. No question of that kind appears to have been raised upon this award, in the court below.
¶12For this error, the judgment must be reversed and the cause remanded for further proceedings, in conformity with this opinion.