This is a motion to vacate a judgment on an award, on the ground that it was entered up in vacation instead of during the term, and the first enquiry is, was it so entered ? If we look only at the transcript of the record sent up by the Clerk of the Superior Court, we perceive that the cause was referred at May sessions 1815, and the judgment is entered at August of the same year. This, however, is but a transcript of the record sent from the County to the Superior Court, and can at best be only a copy of the record accompanying the appeal. A certified copy of the record of the proceedings in the County Court is filed in this Court, and relied upon by the Plaintiff, by which it ap pears that the cause was referred at May sessions 1815. and that the order of reference is brought forward to August sessions of the same year, when it is renewed, and an agreement subjoined that the award of the re ferees, made between that time and the Superior Court, *284is to be entered as a judgment of the term, by consent of parties. It is evident, then, that no award was made at that time, otherwise the parties, to whom it must have keen known, could not have consented to the future making of the award. The entry of judgment made at the same sessions was in pursuance of the agreement, and must, in the nature of things, have been inserted by the clerk after the award was returned. If any doubt remained on the subject, it is completely removed by the date of the award, which forms a part of the same transcript. It was made on the 25th of September 1815, in the vacation, and after the Superior Court, the first day of which was the 18th of the same month. It is thus shewn, without travelling out of the record, or referring to the affidavits of the referees, that the judgment of the County Court was entered up in vacation, by the clerk, in partial execution of the previous agreement of the parties, though contrary to it as to the time of making the award.
This whole proceeding is therefore void in point of law, nor could any agreement of the parties, even if the aw ard had been duly made in other respects, give it a legal existence. It was the judgment not of the Court, but of the Clerk, whose acts cannot acquire a judicial authority by the consent of the parties, which can never alter the law. Nor can any subsequent release of errors by the party to be affected by this entry, give it-the validity of a judgment. Such a release is not of more forcible obligation than a previous consent, which in the case of Slocumb v. Anderson, was held to be utterly unavailing, though it was a confession of judgment for a just debt. In that case it was decided, that no acquiescence, admission or acknowledgment of the party being any more competent te validate, than the first acknowledgment was to create. The judgment of the Court is, that the entry on the docket of the County Court, purporting to be a judgment, be expunged.
I agree in the result, that the clerk d be directed to expunge the judgment by him entered in vacation $ and to me it seems a sufficiency appears on the record sent to this Court by the appeal, to authorise it. The affidavits read in the Court below, were the grounds on which the motion was made there j the same affidavits form part of the record sent here. It is not necessary that they should be entitled, or have a caption. The caption of the record of which they are a part is sufficient.
Henderson, Judge, concurred, and
By the whole Court. — Let the entry on the docket of the County Court of Nash, purporting to be a judgment, be expunged.