was of opinion, that as there had been no partition or division of the property, and as plaintiff had claimed the whole, and not his third or u.ndi-*462vided interest only, that he could not maintain this suit, and therefore ordered a nonsuit.

This was, therefore, a motion to set aside this nonsuit, •which was ordered accordingly, upon the principles and authorities of the next preceding case of M'Fadden and wife v. Haley.