Some of the Lords of Session being chosen arbiters in a cause, may nevertheless sit and vote with the other Lords, in the execution of the decree-arbitral.
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There was a submission of certain debates and quarrels betwixt the Laird of Coluthie, on the ane pairt, and the Baron of Fingask, who made a certain number of the Lords of Session, viz. three to every partie, and in case of variance, the chancellor to be oddsman and oersman.—The decreet being given be the chancellor, because the Judges arbiters could not agree, thereafter Coluthie socht the decreet to be registrate. It was opponit againes the registration, That all the persons who wer chosen to be arbitrators, could not be Judges, but aught to be removit, as they who had given partial counsall, as was practised sundrie tymes of before. It was answerit, That albeit there was certain number of the ordinar Judges of the Session that were chosen arbitri aut arbitratores obligantibus; yet now when the registration and execution of the thing was decernit, the self same persones might be Judges quia aliud est arbitrium, aliud judicium; for utherwise the decreet arbitral sould skairsely take effect, for such a great number of Lords being declynit, there would not rest behind to make furth the ordinar number. The Lords repellit the declinator, and fand the decreet arbitral sould be registrate.
