ARBITER¹. One who, decides without any control. A judge with the most extensive arbitrary powers; an arbitrator.

ARBITRAMENT. A term nearly synonymous with arbitration². (q. v.)

ARBITRAMENT AND AWARD. The name of a plea to an action brought for the same cause which had been submitted to arbitration, and on which an award had been made. Wats. on Arb. 256.

ARBITRARY. What depends on the will of the judge, not regulated or established by law. Bacon (Aphor. 8) says, Optima lex quae minimum relinquit arbitrio judicis et (Aph. 46) optimus judex, qui mi nimum sibi

2. In all well adjusted systems of law every thing is regulated, and nothing arbitrary can be allowed; but there is a discretion³ which is sometimes allowed by law which leaves the judge free to act as he pleases to a certain extent. See Discretion

ARBITRARY PUNISHMENTS, practice. Those punishments which are left to the decision of the judge, in distinctiou from those which are defined by statute⁴.

ARBITRATION, practice. A reference and submission⁵ of a matter in dispute concerning property, or of a personal wrong, to the decision of one or more persons as arbitrators.

2. They are voluntary or compulsory⁶. The voluntary are, 1. Those made by mutual⁷ consent, in which the parties select arbitrators, and bind⁸ themselves by bond abide⁹ by their decision; these are made without any rule of court. 3 Bl. Com. 16.

3. – 2. Those which are made in a cause depending in court, by a rule of court, before trial; these are arbitrators at common law, and the award is enforced by attachment¹⁰. Kyd on Awards, 21.

4. – 3. Those which are made by virtue¹¹ of the statute, 9 & l0 Will. III., c. 15, by which it is agreed to refer a matter in dispute not then in court, to arbitrators, and agree that the submission be made a rule of court, which is enforced as if it had been made a rule of court; Kyd on Aw. 22; there are two other voluntary arbitrations¹² which are peculiar¹³ to Pennsylvania.

5. – 4. The first of these is the arbitration under the act of June 16, 1836, which provides that the parties to, any suit may consent to a rule of court for referring all matters of fact in controversy¹⁴ to referees¹⁵, reserving all matters of law for the decision of the court, and the report of the referees shall have the effect of a special verdict, which is to be proceeded upon by the court as a special verdict, and either party may have a writ¹⁶ of error to the judgment¹⁷ entered thereupon

6. – 5. Those by virtue of the act of 1806, which authorizes¹⁸ " any person or persons desirous of settling any dispute or controversy, by themselves, their agents or attorneys, to enter into an agreement in writing, or refer such dispute or controversy to certain persons to be by them mutually chosen; and it shall be the duty of the referees to make out an award and deliver20it to the party in whose favor it shall be made, together with the written agreement entered into by the parties; and it shall be the duty of the prothonotary, on the affidavit¹⁹ of a subscribing²⁰ witness to the agreement, that it was duly executed by the parties, to file the same in Iiis office; and on the agreement being so filed as aforesaid, he shall enter the award on record, which shall be as available in law as an award made under a reference issued by the court, or entered on the docket by the parties."

7. Compulsory arbitrations are perhaps confined to Pennsylvania. Either party in a civil suit or action,, or his attorney, may enter at the prothonotary's office a rule of reference, wherein be shall declare his determination to have arbitrators chosen, on a day certain to be mentioned therein, not exceeding thirty days, for the trial of all matters in variance²¹ in the suit between the parties. A copy of this rule is served on the opposite party. On the day. appointed they meet at the prothonotary's, and endeavor to agree upon arbitrators; if they cannot, the prothonotary makes out a list on whicb are inscribed²² the names of a number of citizens, and the parties alternately strike each one of them from the list, beginning with the plaintiff, until there are but the number agreed upon or fixed²³ by the prothonotary left, who are to be the arbitrators; a time of meeting is then agreed upon or appointed by the prothonotary, when the parties cannot agree, – at which time the arbitrators, after being sworn or affirm and equitably²⁴ to try all matters in variance submitted to them, proceed to bear and decide the case; their award is filed in the office of the prothonotary, and has the effect of a judgment, subject, however, to appeal, which may be entered at any time within twenty days after the filing of such award. Act of 16th June, 1836, Pamphl. p. 715.

8. This is somewhat similar to the arbitrations of the Romans; there the praetor selected from a list Of citizens made for the purpose, one or more persons, who were authorized²⁵ to decide all suits submitted to them, and which had been brought before him; the authority which the proctor gave them conferred on them a public character and their judgments²⁶ were without appeal Toull. Dr. Civ. Fr. liv. 3, t. 3, ch. 4, n. 820. See generally, Kyd on Awards; Caldwel on Arbitrations; Bac. Ab. h. t.; 1 Salk. R. 69, 70-75; 2 Saund. R. 133, n 7; 2 Sell. Pr. 241; Doct. PI. 96; 3 Vin. Ab. 40; 3 Bouv. Inst. n. 2482.