#### JAMES S. YARBOROUGH *against*FREDERICK YARBOROUGH AND ANOTHER.

Where the friends of an infant made an exchange of his slaves for others, and those received in his behalf were carried off by his friends and sold, and he afterwards, without taking any benefit from the arrangement, repudiates it, and recovered in trover for those belonging to him, a court of equity will not interfere to restrain his execution, with the view of compelling him to return the slaves received on his behalf or account for their value.

Appeal from the Court of Equity of Franklin county.

In the year 1843, Frederick Battle, of Nash county, in this State, by deed of gift, duly executed, gave to the defendants, Frederick Yarborough and Emily Yarborough, (his grandchildren) six slaves, amongst which, were the two Eobin and Burton, who are more particularly the subject of this suit. These slaves were in the possession of Thomas E. Yarborough, the defendants’ father, in the State of Arkansas, he having been permitted to take them thither by the said Frederick Battle.

The plaintiff having a claim upon certain other slaves, which were in the possession of Thomas E. Yarborough, to wit, Lewis, Ailsy and Sarah, went to the State of Arkansas, and was about to bring them back to this State, which (as the bill alleges) was disagreeable to the family of the said Thomas, and particularly to his wife, Mary Ann, who was attached to the slaves about to be removed ; therefore, with the advice and concurrence of the parents of' the defendants, and other family friends, the plaintiff conveyed to one John L. Gervais, all the other slaves, given by F. Battle, to the defendants, excepting Burton and Eobin, to wit, Fanny, Milbury, Owen and Ailsey, also three others, not given them, but which were all in the possession of their father, to wit, Ailsey, (the elder) Lewis, and Sarah, in trust for the benefit and support of the said Thomas E. and his wife, Mary Ann, for their lives, and then to all their children, of whom there were four surviving, including defendants. This deed of trust recites, as a consideration the brotherly love and affection which the said James *210S., the plaintiff, has for the said Mary Ann, and her children, and the sum of ten dollars cash to him in hand paid ; but the real consideration, as set forth in the bill, was the surrender by Thomas E. Yarborough to the plaintiff the two slaves, Robin 'and Burton, so as aforesaid given to the defendants by their grand-father. These slaves, the plaintiff immediately put into the market somewhere in the southwest and converted them into money.

The defendants being both very young, not having taken any benefit under this arrangement, nor having.been consulted about it, through their maternal uncle, Thomas J. Battle, as their next friend, brought an action of trover in the Superior Court of Franklin county, and recovered as the value of the said slaves, Robin and Burton, $2992, with interest and costs. The prayer of the plaintiff is, that the defendants be enjoined from taking out execution on this judgment, until the slaves, Lewis, Ailsey (the elder) and Sarah, shall be surrendered to him, or their value credited on the judgment.

The defendants both answered at length, but the facts, set out by them, become unimportant from the view taken of the subject by the Court.

On the coming in of the answers, the defendants’ counsel moved to dissolve the injunction, which was refused by the Court, and an order made that it be continued to the hearing of the cause ; from which the defendants appealed.

*B. B. Gillia/m*and Miller, for the plaintiff.

*B. F. Moore*and Lewis, for the defendants.

PeaesoN, C. J.

We are of opinion that the- bill does not show on its face any equity against the defendants Frederick and Emily, who are the plaintiffs in the- action at law, and, consequently, the injunction was improvidently granted.

Suppose an infant sells a negro, receives the purchase-money and spends it, and afterwards avoids the contract by a demand of the negrq, and a recovery in trover for his value, a pfinrt of eauitv enioin him from íoo-moo- p-s-<v*ntion. un*211less he will repay the purchase-money, or enter credit for the amount on his judgment? If so, the policy of the law in protecting infants against their supposed want of discretion, will be defeated ?

Or suppose an infant exchanges negroes, and the negro received by him is sold and carried to parts unknown, and af-terwards he avoids the contract by a demand of the negro given by him in exchange, and a recovery in trover for his value, will a court of equity enjoin him from issuing execution unless he will return the negro received by him, or account for the value? No authority was cited in support of the position, and it is manifest, that such an interference by a court of equity would, in eífect, deprive infants of the protection of the law, and subject them to all the consequences of their want of discretion.

In these cases, it is assumed that the infant is a party to the contract, but in the case made by the bill, waiving the objection that as the deed to Gervais recites for its consideration “ brotherly love and affection,” and the sum of “ ten dollars cash,” it is not admissible to add to and contradict the deed by averring, that in point of fact, the real consideration was ne-groes Robin and Burton, there is no allegation that the infants Frederick and Emily were parties to the supposed exchange of negroes, and the amount of it is, that the plaintiff, by an arrangement with the parents and friends of the infants, took Robin and Burton, two negroes belonging to them, and converted them to his own use, and in lieu thereof, and by way of compensation, executed the deed to Gervais, conveying certain other slaves in trust for the parents during life, and then in trust for their children, including the defendants, Frederick and Emily.

The question is, when Frederick and Emily bring an action of trover against the plaintiff and recover damages for the conversion of Robin and Burton, has the plaintiff an equity to enjoin the collection of the judgment, on the ground, that the negroes conveyed by him to Gervais, are in the State of Arkansas, where they were at the date of the conveyance, *212and some of them have been disposed of by the father of Frederick and Emily 2 In other words, can the legal rights of these infants be fettered and embarrassed by reason of an alleged arrangement with their parents — to which they were not parties, which was obviously against their interest — under which they have not acted or taken benefit, and which they repudiated and avoided by instituting their action at law for the conversion of Robin and Burton 2 A bare statement of the case is the strongest argument that can be made on the part of the *infants;*because it shows that if Equity interposes against them under such circumstances, the protection which the law gives to infants, is illusory; and not only so, but that their property may be taken from them without any contract on their part, but simply by force of an understanding among their parents and friends, in respect to which they were tors young to be consulted, and under which they have taken no benefit, but; on the contrary, disavow and repudiate it?

There is error in the decretal order by which the injunction was continued until the hearing. The injunction ought to be dissolved. This will be certified.

Pee CuexaM, Decretal order reversed.