In a competition betwixt an indorsee and an arrester, the prior indorsation was preferred, because bills require no intimation.
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There was a competition betwixt John Ewing, as he who had a bill of exchange indorsed to him by Howison; and John Geills and Alexander Johnston, as arresters for the drawer's debt; for whom it Was alleged, That though their arrestments were posterior, yet they ought to be preferred; because the indorsation being of the nature of an assignation, the same not being intimated, was an incomplete right, and could never compete with them.—Answered, 1mo, Bills of exchange are not regulated by the common formalities of law; but, for the dispatch of trade and commerce, are not clogged with intimations till they fall due; as is clear from Stair, B. 3. tit. 1. § 12. where the first order is always preferred to arresters of assignees; these rights being regulated jure gentium, conform to the custom of merchants. 2do, Geills, one of the arresteres, is the indorser of the bill, and so can never compete.—Replied, Though favour of commerce requires the speedier transmission of bills than other rights; yet this does not dispense with such formalities as open a door to all frauds; which the want of intimation may do; and the drawer of the bill is never fully denuded till it be either accepted or intimated; and, before that, it may be still arrested as his money; yet the Lords preferred Ewing, to whom it was indorsed, before the arresters.
