
    [Philadelphia,
    April, 3d, 1841.]
    ASH against M'GILL.
    When the recovery in ejectment is of an undivided part of the premises, the sheriff must put the plaintiff into actual possession thereof along with the defendant.
    A judgment had been obtained by the plaintiff in an action of ejectment against the defendant, for an undivided fifth part of a house and lot of ground in the Northern Liberties. The plaintiff sued a writ of possession to March term, 1841, which was returned executed. The sheriff had put the plaintiff into actual possession of the house and lot, along with the defendant’s tenant in possession; and the plaintiff was expelled therefrom by the tenant in possession, and others.
    Mr. C. Ingersoll, for the plaintiff,
    now took a rule on the defendant to show cause why an alias writ of possession should not be issued under the 1st section of the act of 1st February, 1834, being “ a supplement to the act relating to actions of ejectment.”
    Mr. Goodman, for the defendant.
    The recovery of the plaintiff being of an undivided fifth of the house and lot, actual possession along with the defendant cannot be given by the sheriff consistently with the defendant’s possession of his four fifths. It amounts to an ouster of the defendant of a portion of his unquestioned right of possession. The defendant offered the plaintiff to account to him for a fifth of the proceeds of the annual value of the premises: the plaintiff can have his action of partition, and of account.
    
      
      
        Dawson v. M'Gill, (4 Wharton, 230.)
    
   Per Curiam.

Let the alias habere facias possessionem be issued.  