Harrod vs. Hill, 2 Dana 165

Chief Justice Robertson delivered the Opinion of the Court. Tms is an action of replevin, in which, though the officer returned that he liad, according to the command of the writ, restored the property which had been replevied, the circuit court rendered judgment retorno habendo, as well as for damages and costs. The judgment retorno is erroneous.

But, though this is admitted, the counsel for the defendant in error, having produced a supplemental record shewing a remittitur of u the damages” in the circuit court, and offering to enter a similar remittitur in this court, insists that the judgment should be affirmed. It is not material to determine whether, as was said by the supreme court of the United States in The Bank vs. Ashley, 2 Peters, 327, a remittitur in the inferior court after error brought, should be available in this court, so as to produce an affirmance at the costs of the defendant in error.

Nor need we intimate, whether this court should, or could rightfully, establish such a rule as that made by the supreme court in the case in 2nd Peters (supra,) as to the effect of a remittitur in this court : because, in this case, the judgment for a return of the property has not been remitted, and no offer to remit it has been made here, or in the circuit court. Wherefore, for the error in giving judgment (by default,) for a return of the property, the restoration of which by the officer, pursuant to his writ is proved by his official return upon it, the judgment must be reversed, and the cause remanded.