The gift of the escheat of a person, who had not been convicted of a crime, tho' he had obtained a remission, found ineffectual.
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One Breadie procures the gift of his brother's escheat, as an adulterer, and pursues a declarator.—It was alleged, That he was never convicted in a criminal court for adultery.—It was answered, and offered to be proven, That he satisfied the kirk as an adulterer, and took a remission therefor.—It was replied, That no such church satisfaction or confession could be equivalent to a conviction by an assize, which only could make his escheat to fall; unless he had been denounced rebel, or declared fugative for not compearance. Nor did the taking of a remission import so much; seeing men may take remissions where there is no ground for a criminal conviction; and unless he were pursued criminally, and defended himself by his remission, and thereupon were assoilzied, the accepting of a remission could not make him guilty, to make his escheat fall.
The Lords found the allegeance relevant, and assoilzied.
