ARBITER, in the civil and Scots law, signifies a pri vate judge, chosen by consent (ex consensu et compro misso) of the parties at variance, for the purpose of de ciding their difference, in a more amicable and less expensive manner, than by a trial at law.
The Romans had certain judges whom they called judices pedanei, who were authorised to decide a variety of causes, according to a formula prescribed by the prxtor; but without any power o! carrying their sen tences into execution, which was reserved to the praetor himself.
Arbiters had a similar power of pronouncing senten ces in civil matters referred to them, but without the right of execution.
One or more persons may be named as arbiters by the parties; and the Romans generally preferred an unequal number. If there were two arbiters who could not agree, the praetor might compel them to choose a third person, whose award should be decisive.
The office of an arbiter being voluntary, no person could be forced to undertake it ; but he who had once accepted, might, by the Roman law, be compelled to give a decision. Arbiters are hut private persons, in whom the law bath vested no jurisdiction ; and hence they cannot compel witnesses to appear and depose be-. fore them, or possessors of writings to exhibit them. But this defect is supplied in Scotland by the court of session, who, at the suit either of the arbiters, or of either of the parties, are in use to grant warrants in course for the citing of witnesses, or for the exhibition of writings before the arbiters.
As arbiters derive their whole powers merely from the consent of the parties submitting, their award or decree, if it be not given in conformity to those powers, is null, not being founded upon any proper authority. Hence arbiters cannot inflict, on the parties submitting, any penalty or fine higher than that which they themselves have agreed to in the submission. Hence also, if the parties submitting limit the power of the arbiters to any fixed day, decree cannot be pronounced after that day ; though it may, in ipso termino, i. e. on the very day
betwixt and which the arbiters had powers given them to decide. Where arbiters take upon them expressly to determine points not referred to them, the decrect arbitral may be declared null, upon an action of reduc tion, as being pronounced ultra wires compromise& An award or decreet-arbitral, by which a part only of the claims submitted was determined, and the rest left open to the decision of the judge-ordinary, was wholly void by the Roman law. L. 25. pr. § 1. De rec. qui arb. Such a partial decree, however, is valid by the practice of Scotland, in so far as it goes: but if the arbiters should presume to pronounce judgment upon all the articles claimed on the one side, and leave all those on the other undetermined, the decree is null.
By the Roman law, an award pronounced by the ma jority of the arbiters was effectual ; and also by the sta tute law of Scotland, 1426, c. 88; but it has been ad judged, Fount. Feb. 10. 1693, More, that where no ex press power is given to the majority to determine, all the arbiters ought to agree in opinion.
Arbiters, by the Roman law, might decide in all civil causes referred to them, but not to such causes as involved the status, or social condition of any of the parties, or which were of the nature of popular actions. The causes in which they were entitled to decide, there fore, were generally such as fell under the description of bows fidei actions, in which they were to judge secundum xquunz bonumque. In this sense, bona .fides is opposed, not to fraud, but to strict law. Ersk. Inst. of the Law of Scotland, b. iv. t. 3. § 29. et. seq. Voef. Comment. ad Pandect.l. iv. t. 8. (z) A 11.13