delivered the opinion of the Court.

Since the original decree of Chancellor Johnson was pronounced, the house and lot have been sold, by the Commissioner, under the decree of this Court, for $1052; and according to the report of the Commissioner, made in June 1846, the defendant, Wm. McKenna, has already paid, under recoveries had against him, as surety of Sheriff Secrest, $>1513 47.— The only question is, whether this Court shall, in the exer cise of its discretionary power, decree a specific performance of the contract, and divest McKenna of his legal title, or permit him to avail himself of his legal title, in order to indemnify or reimburse himself, for the sums thus paid as surety of Secrest. A majority of the Court concur in the judgment of the presiding Chancellor, that the case cannot, in principle, be distinguished from Aiken ads. Walling, and the appeal is accordingly dismissed.

Appeal dismissed.