It was objected that a retour could not be done away by simple reduction, but that a summons of error was requisite. Found that a retour may be simply reduced, unless the question depend on propinquity of blood.
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The said Isobel having served heir to William Mow her grandsire, charges the Dutchess, as superior, to receive her; she suspends, and compearance is made for certain persons, to whom the charger's father had disponed the lands in question, who raised reduction of the defender's retour and infeftment, upon this reason, that the retour was null, serving the charger heir to her grandsire as last vest and seased, whereas they produced the infeftments of their uncle and father, as heirs to their grand-sire in these lands; and therefore instructed that her grand-sire died not as last invest and seased, as of fee, but her father their author. It was answered for the charger, That the retour could not be taken away, hoc ordine, by reduction, but behoved to be by a summons of error, for reducing the service by an inquest of error, to be pursued in Latin, by a precept out of the Chancellary. It was replied, That there needed no service of error, but the retour and infeftment might be reduced, unless there had been the question of propinquity of blood, of a nearer heir, which might have made the inquest an assize of error, which could not be in this case, seeing the inquest had done their duty, who produced one of the grandsire's sasines, found him to have died last vest and seased, as of fee, and neither could know, nor was obliged to know, that there was a posterior infeftment to the defender's uncle or father.
The Lords found the reduction receivable hoc ordine.
