An arbiter who has accepted can be compelled to decide, see No 17. infra.
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There being a submission entered into betwixt Sir Alexander Bruce of Broomhall, and Alexander Bruce his son, on the one part, and George Baillie of Jerviswood, Sir George Hamilton, and others, on the second part, to four arbiters, with this express quality, that no decreet arbitral should follow thereupon unless all the four agreed; and they having gone through the whole articles, and, by signed minutes and interlocutors, having agreed thereon, when the decreet comes to be extended on the back of the submission, Sir William Bruce of Kinross, one of the four arbiters, declines to subscribe it; whereon there is a bill given in by Jerviswood and the rest, craving letters of horning to charge Sir William to give forth his sentence and determination in the case, seeing it was signed by the other three, and they could not get the submission registrated to charge him on his acceptance to decern, because the decreet-arbitral being extended on the back of it, could not be registrated till it was perfected by all their subscriptions. The Lords considered, from the title in the Roman law de receptis, and by our practique, arbiters might be compelled ut sententiam dicant when they had once accepted, and that there was not locus penitentiæ; but that law could not compel Sir William to concur with the other three in their sentiment, but only to give out his determination as he was persuaded to be just in his own conscience; so the Lords granted letters of horning against him to this effect, that he might give his opinion as to the claim and controverted points, but nowise to oblige him to join with the other three in their decision, unless he thought it just.
The Lords of Session, and all other judges, are bound impertiri officium suum, and to decern when required by the parties; and by the same rule arbiters accepting are tied to do the same.
