remittitur

the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess—in that sense that it has been found by the jury—and that the remittitur has the effect of merely lopping off an excrescence.

It is sent back; it is remitted. The word is used as an English substantive in two senses. 1. A remittitur of record is the sending back of a record or transcript from a superior to an inferior court, for entry of judgment and issue of execution, or for a new trial, or other proceedings. It is the term in common use in the practice of the New York court of appeals, for the order sending down the cause after decision, as mandate is in the practice of the United States supreme court. This species of remittitur was used when the house of lords, having affirmed the judgment on a writ of error from the queen's bench, returned the record. Proceedings in error are now abolished under the judicature act, by order 58, rule 1. 2. A remittitur of damages is the relinquishment or surrender of a portion of the amount awarded by the jury. This is sometimes made when, because the award exceeds the jurisdiction of the court or the amount claimed in the declaration, the plaintiff cannot enter judgment for the entire damages allowed; and sometimes when, upon appeal or motion for new trial, the court is of opinion that the plaintiff is entitled to recover some damages, but not so large a sum as the jury have found. The court will give the plaintiff an option to enter a remittitur as to the excess, on doing which he may retain his judgment for the amount adjudged proper; or, if he declines, a new trial is ordered. A common instance of the first description of remittitur is afforded in an action of replevin, wherein the defendant, having pleaded and established an avowry, cognizance, or justification, is entitled to damages; but as that action is generally brought merely to establish a right, the defendant often excuses or remits the payment of those damages to which he would be otherwise entitled; and, when he does so, it is thus recorded in the judgment: "And hereupon the said C D freely here in court remits to the said A B his damages aforesaid; therefore let the said A B be acquitted thereof." Brown.