It does not judicially appear, that the deiendant was in fact a freeholder. His having been discharged on common bail is no evidence of it; because the same result would ensue from a discharge under the insolvent laws, or from failure to shew cause of action; or it may have been by agreement. But if evidence of the fact even appeared on the record, to decide on it is so peculiarly the province of the Court below, who are to exercise a sound discretion under all the circumstances of the case, that it cannot be enquired into here. Nothing that is matter of pure discretion, is the subject of error: and on these grounds we are of opinion that the judgment should be affirmed.

Judgment affirmed.