Plaintiff claimed that his children were excluded from one schoolroom and assigned to another on account of their color. The defense was that the school had been properly graded by the board and the plaintiff’s children assigned to the classroom for which their capacities and attainments fitted them. The judge left the question to the jury with clear instructions that under the Act of 1881, P. L, 76, any distinction between pupils on account of color was unlawful and if the jury believed such distinction was made here they should find for the plaintiff. It was a plain issue of fact in which the evidence was conflicting and the judge could not have taken it from the jury.

Judgment affirmed.