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In an action for wrongous intromission with the teinds of Ednem, of the crop 1631, the Lords sustained this action, and decerned according to the quantity of the teinds proved; albeit the defender alleged, that he intromitted according to a Warrant of the High Commission, giving him power to intromit, he finding caution to pay the quantity to which the teinds should be valued, as use is in that Commission; likeas the teinds are valued, and the valuation approved by the Lords of the Commission, and he is content presently to pay the quantity, whereto it is valued; and therefore he alleged, that the decree ought to be restricted to that quantity, and no further ought to be decerned. This allegeance was repelled, and notwithstanding thereof the quantity proved was decerned, and the prices, but the smallest quantity that was proved was decerned; and this was so found seeing the pursuer had not submitted, so that the act of the Commission could not astrict him; albeit the defender alleged, that if the Lords of the Commission had not given him the warrant to meddle and lead the teind, he would not have intromited therewith; which was not respected, seeing he sought that warrant upon his own peril and hazard. And this is the first decision where the quantity proved was decerned, notwithstanding of the warrant to lead from the Commission, and notwithstanding of the approving of the valuation.
Act. Stuart, & Craig.Alt. Nicolson.Clerk. Gibson.
Durie, p. 651.
