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In a bond of relief, granted to a cautioner, there was a clause obliging the principal debtor to relieve his cautioner, and for that effect to pay the money, not to the cautioner, but to the creditor, betwixt and a certain term. After elapsing of the term, the cautioner registered his bond of relief, and obtained a precept of poinding from the Bailies of Edinburgh, which he put in execution. Upon this poinding, unwarrantable in respect the obligation to pay was conceived in favour of the creditor, not of the cautioner, the common debtor intented an action of spuilzie, and the question was, whether the precept of poinding was not a colourable title to defend from the penal consequences of the action. This debated, but not finally determined. See Appendix.
