The blanks in the scire facias and judgment are only as to costs, which the clerk could at any time fill after the costs were taxed. May Term, 1854. POLKE V. We can not discover any substantial grounds of objec- HARPER. tion to these proceedings. Per Curiam. The judgment is affirmed, with 5 per cent. damages and costs. J. M. Hanna, for the plaintiff. KEELY and Others v. LYNN. ERROR to the Marion Circuit Court. Per Curiam.-The same points are raised in this record that arose in Searl v. Richey, ante, p. 199. For the reasons there given, the same judgment follows. The judgment is affirmed, with 5 per cent. damages and costs. R. L. Walpole, for the plaintiffs. L. Barbour and A. G. Porter, for the defendant. Friday, POLKE and Another v. HARPER. ERROR to the Henry Circuit Court. STUART, J.-The plaintiffs filed a petition for a mandamus against Harper, as trustee of a school district in Henry county, requiring him to appear and show cause why he should not, as such trustee, remove certain colored children from the school, &c. The petitioners alleged that they were white residents and inhabitants of, and taxpayers in the school district in question; that there was there at that time a common district school, open to all VOL. V.-16 Friday, POLKE V. HARPER. May Term, the white inhabitants of the district, taught by Miss Grey, 1854. under the direction and supervision of Harper as such trustee, &c.; that the petitioners had several children whom they were desirous to educate at said school, but were prevented by the presence and attendance of four colored children as scholars; that they had served written notice on Harper to remove the colored children from school, which he had failed and refused to do. Hence they prayed for a peremptory mandamus, &c. In answer Harper made return, denying that the school taught by Miss Grey was a district school; denying that there was any district school under his supervision in the district; but on the contrary that Miss Grey's school was a private enterprise, setting out the contract between the teacher and her patrons, &c., and that he had no control over it, &c. To this return the plaintiffs demurred; the Court overruled the demurrer; and on refusal to withdraw, the petition was dismissed at their costs. The petitioners bring the case to this Court. The question whether the trustee of the district has a right, as such, to remove colored children from the district school, is not raised in the record. The return denies that there is any district school; and the demurrer admits what is alleged in the return, namely, that Miss Grey's school, the only one there, is a private school. With such a school Harper had, of course, no right to interfere. The facts in his return were sufficient, and the demurrer correctly overruled. Per Curiam.-The judgment is affirmed with costs. J. S. Newman and J. P. Siddall, for the defendant. KELLER, Administrator, v. DUNCAN. APPEAL from the Wabash Circuit Court. Per Curiam.-The record shows that this cause was submitted to the Circuit Court, and after hearing the proofs, the judgment of the Court below was affirmed. Then follows a judgment, from which an appeal was taken to this Court. Attached to this record, but not certified as part of it, there are certain papers, purporting to be the proceedings of the Probate Court of Wabash county, from which it may be supposed that this case originated in that Court, and was tried in the Circuit Court as an appeal. But as these proceedings are not incorporated in the record of the case appealed to this Court, we do not regard them legitimately before us. In the Circuit Court the plaintiff moved for a new trial. The motion was denied; wherein, it is alleged, there was error. But, as the record does not set out the evidence, or show the ground upon which the cause was decided, we must presume that the Circuit Court ruled correctly. The judgment is affirmed with costs. D. M. Cox, for the appellant. J. M. Wheeler, for the appellee. May Term, 1854. NAVE V. CLARK. Friday, NAVE V. CLARK. APPEAL from the Hendricks Circuit Court. Per Curiam.-Bill in chancery. It is alleged that one William C. Cline, on the 8th of June, 1850, obtained a judgment before Meloge, a justice of the peace, against one James Dugan, which was recovered for the use of Clark, the appellee, though not so entered on the justice's docket; that prior to the institution of the suit in which said judgment was rendered, Clark was indebted to Dugan, Friday, May Term, 1854. NAVE V. CLARK. by book account, in a sum nearly equal to the amount due from Dugan to Cline for Clark's use; that Clark repeatedly proposed to offset his claim so held by Cline for his use, against the book account; but Dugan refused, afterwards sued Clark on the account before one Burk, a justice of the peace, and on the said 8th of June, 1850, recovered a judgment; that both judgments were rendered on the same day, and on the day they were obtained both were assigned. The one in favor of Cline was assigned to Clark, and the one against Clark was assigned to Nave, the appellant; that after these assignments, Clark proposed to offset the one judgment against the other; but Nave refused, has caused an execution to be issued on the judgment against Clark, and placed the same in the hands of a constable; that Nave, prior to the assignment of Dugan's judgment, had notice of all the above-stated facts, and received that assignment for the purpose of defrauding Clark. The bill prays that the collection of the judgment assigned by Dugan to Nave be enjoined; and for general relief. In vacation, the president judge of the Court granted an injunction, which, upon answer, exhibits and depositions, Nave, at the next succeeding term of the Court, moved to dissolve. This motion was overruled, and Nave appeals to this Court. The answer alleges that Nave received the assignment of the judgment in payment of a debt due to him from Dugan, without any intention whatever of defrauding Clark; that the assignment to Nave was made prior to the assignment to Clark; and that Dugan was solvent and able to pay the judgment which Clark holds against him. The residue of the bill is not either directly admitted or denied. The facts charged in the bill present a case clearly within the jurisdiction of a Court of Equity; and the decision of this cause must turn alone upon the evidence. We have looked into the depositions, and are decidedly of opinion that the answer, so far as it denies the allegations in the bill, is disproved, and that the evidence fully sustains the ruling of the Court below. The decree is affirmed with costs. C. C. Nave, for the appellant. J. S. Harvey and J. M. Gregg, for the appellee. May Term, 1854. BRYANT V. THE STATE. BRYANT V. THE STATE on the relation of QUIGLEY. A sheriff's return to a summons stated that he had served it by leaving a copy at the defendant's "last place of residence." Held, that the return, under the R. S. 1843, showed a sufficient service. ERROR to the Tippecanoe Probate Court. DAVISON, J.-Debt by the state on the relation of Quigley against Bryant, a surety upon an administrator's bond. The following is the return of the sheriff to the original process in the cause: "Served this writ on the within named Absalom Bryant, by leaving a copy at his last place of residence. January 23, 1852." Bryant having failed to appear, judgment was taken against him by default, and a jury was impanneled to assess the plaintiff's damages. Final judgment for the plaintiff. The objection to these proceedings is, that the sheriff's return was not sufficient to authorize the default; that leaving a copy of the writ at Bryant's last place of residence was not good service. This is a mistake. A statute in force when this suit was commenced, provides, that when a summons is issued, "it shall be served either personally on the defendant or by leaving a copy thereof at his usual or last place of residence." R. S. 1843, c. 40, s. 23. The return is in accordance with the statute. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. Z. Baird, for the plaintiff. Friday, J. Pettit and S. A. Huff, for the state. |