
    *Mary Marshall v. C. and T. Drayton, and others.
    A person cannot be made a party to a suit, except by process, or by consent; the only evidence of which must appear from the records. And defendants’ names only appearing in the judgment, is not sufficient evidence.
    This case came before the Circuit Court, on a rule to show cause why a writ of fi. fa. issued in this case should not be set aside, as to the defendants Charles and Thomas Drayton, their names having, as was alleged, been illegally inserted therein.
    The circumstances which gave rise to the motion were these: The plaintiff had sued out a writ of replevin against Montague Jackson and-Levy, the other defendants, and thereupon declared against all of the present defendants. To this declaration the defendants, Jackson anej. Levy, avowed for rent due to Charles and Thomas Drayton. And, in the plaintiff’s replication to this avowry, they [O. and T. D.] were also named as defendants ; but the similiter to the replication, which concluded to the county, was in the names of Jackson and Levy only; and the names of Charles and Thomas Drayton, both in the declaration and the replication were interlined ; but at what time, or by what authority, did not appeal’. It was, however, conceded on all hands, that Charles and Thomas Drayton were the persons interested to defend the action, and that no improper motive could be imputed to this circumstance. ■ Another singular circumstance was that, on the first trial of the cause, in the Circuit Court, the defendants had a verdict, and in the judgment entered up on that verdict, Charles and Thomas Drayton were named as defendants. But a new trial was granted, and on the second trial, the plaintiffs had a verdict, on which the present fi. fa. was founded.
    The judge who presided in the Court below granted the motion to set aside the execution as to Charles and Thomas Drayton, and from that decision an appeal was brought up to this Court.
    
      J. B. White, for the motion. Qrimke, contra.
   *26] The opinion of the Court was delivered by

Johnson, J.

No person can be made a defendant in a cause, except by the process of law, or by his own consent. It is equally true, that no one can be directly affected by the judgment of the Court, except those who are parties. In this case, it does not appear, nor indeed is it pretended, that Charles and Thomas Drayton were made parties to the action, by any process of law; and it is only necessary to examine whether the circumstances furnish legal evidence of their assent to become parties. The assent of a defendant to become a party is inferred from his entering an appearance or pleading to an action, although the process, with which he has been served, be irregular, and although, indeed, no process be served on him. But, it is apprehended, that there is no case in which it will be inferred from a mere verbal assent, even if such assent were fully proved. It results, therefore, that it must be by matter of record.

In this case, the names of Charles and Thomas Drayton do not appear on the record, in any stage of the proceedings, when they could possibly have been the actors, until the entering up of the judgment. On the first verdict, it is true, that they are named in the declaration and the replication ; but these are, and must be considered, as the acts of the plaintiff. But in the avowry, and the rejoinder, (in form of a similiter,) the only stages, in the proceedings, in which they could have been the actors, their names do not appear. There is, then, no other matter of record from whence their assent can be inferred, but the judgment entered up in their names, on the first verdict. And there is no evidence that this was done by their authority; and if there was, it was irregular, because the verdict on which it was founded, was only between the parties to the suit, and did not therefore authorize it. But suppose the verdict had been beneficial to the defendants, (as was the fact in this case, although to an inconsiderable extent, and doubtless irregularly so,) could Charles and Thomas Drayton have reaped the fruits *of it? I apprehend not. No -* act of theirs could have entitled them to it; and as strangers to the record, the law gave them no right.

Dpon the whole, this case presents one of those tissues of blunders, from beginning to end, which ought always to be avoided in judicial proceedings, and which, to the credit of the profession, in this State, is rarely exhibited. It is said, however, that great injury will result to the plaintiff, if this motion be refused. But if the other defendants are able to pay the damages recovered, she has her remedy still against them, on the judgment; and if they are not, it was her own fault not to have proceeded against the Draytons, in the first instance, if in truth, the distress was made by their authority. The motion must be dismissed.

Bay, Note and Colcock, JJ., concurred.

1 Bail. 6321 1 N. & McC. 90, note.  