The defender in a reduction must produce his retour, though it be registered in Chancery.
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In an action of reduction Merk Ker contra Scot of Hertwoodmires, for reduction of a service and retour, with the execution thereof, wherein the Judge, clerk, and assizers were summoned, it being alleged, That the summons could not be sustained, being a summons written in English, and under the signet, contrary to the order of the chancellary, and the ancient custom and practice ever kept in such actions and summonses of error, which used to be written in Latin, and on parchment, and were under the quarter-seal. This allegeance was repelled, and the summons sustained, because the summons concluded, or was restricted by the pursuer, only to the reduction of the retour, and concluded no punishment of the assizers, but was only pursued to have the retour reduced and taken away. In this same process, the Lords found also, that albeit the retour was registrated in the chancellary, whereby the defender alleged, That the same being a public register, the pursuer ought to extract the same himself, and that the same could not be reduced, for not production, yet the Lords found, that except the defender should produce the retour, (it being his own proper evident) that they would reduce it for not production. See No 29.
Act. Aiton.Alt. Scot & Cunninghame.Clerk, Gibson.
Fol. Dic. v. 2. p. 326. Durie, p. 344.
