
    Tisdale v. Gandy.
    From Nash.
    Where aiiuit was referred to arbitrators, who returned their award in vacation, when the clerk entered it on the record as a judgment rendered in Court, such entry was ordered to be expunged, and the whole proceeding was held to be void in law; and this, although the party to he affected by the entry gave a subsequent release of errors, for the consent of parties can never alter the law.
    This was a motion to vacate a judgment, made upon the following facts. A suit depending in Nash County Court between the Plaintiff and Defendant, in May 1815 was referred to arbitrators, and the order of reference was renewed from term to term until August 1815. On the 25th of September 1815, the arbitrators returned an award in favour of the present Defendant, and thereupon a writ off. fa. issued against the present Plaintiff, bearing teste August term 1815. On this fi. fa. the Sheriff returned a levy, and writs of ca. sa. issued afterwards against the Plaintiff until February term 181T, when the Sheriff returned that he had committed the body of the Plaintiff to prison. At November term 1818, the Plaintiff moved, pursuant to previous notice to the Defendant, to vacate the judgment whereon execution had issued, 1st, on the ground that the writ of fi.Ja. liad been levied and the property was not sold, or the levy otherwise discharged ; and 2dly, for that the said judgment was not rendered, or entered of record in term time. The Comity Court vacated the judgment, and the Defendant appealed to the Superior Court. During the pendency of the pro-ccedings in the Superior Court, Tisdale, the Plaintiff, executed to Gandy, the Defendant, a release of all claim to vacate or reverse the judgment by reason of any errors and irregularities in the proceedings. The Superior Court affirmed the order of the Court below, whereupon Defendant appealed to this Court. There were several affidavits filed in the Court below to support the facts on which the motion was made, and thdse affidavits made part of the record sent to this Court.
   Tavuor, Chief-Justice.

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, is 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.

Judge.

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.  