
    Allen v. Minor.
    [October Term, 1799.]
    Infants — Surety in Bond — Bona Fide Assignee — Injunction. — If an Infant becomes security in a 12 months replevy bond, a court of equity will grant a perpetual injunction even against an assignee without notice.
    Same — Equity Practice. — For the infant in such case having no day in the court of law, the application to the court of equity is regular.
    Allen brought a bill in the High Court of Chancery to be relieved against a twelve months replevy bond, and stated that upon the 29th of October 1788, he became security for Joseph Watson and Daniel Hawes in a twelve months bond to Payne who was as-signee of Durracott administrator of Coles. That at the time of entering into the said bond the plaintiff was an *infant under the age of twenty one years, to wit, only 18 or 19 years of age ; and therefore that the said bond was void as to him. That Pa3rne had assigned the bond to Minor; who had sued execution on it.
    The answer of Minor states, that he as attorney for Payne obtained the judgment on which the said twelve months bond was given ; that the right to the same soon after devolved on Middleton and Craughton, and Payne having removed out of the state, the defendant as his attorney assigned the bond to a third person; who re-assigned to him, in order to enable the defendant to make the necessary affidavit for obtaining the execution. That he knows nothing of the plaintiff; and therefore cannot say whether he be of full age or not.
    The infancy of the plaintiff at the time of giving the bond was proved. The Court of Chancery dismissed the bill with costs; and the plaintiff appealed to this court.
    Duval, for the appellant.
    The plaintiff was an infant at the time of executing the bond, and therefore was not bound by it unless some fraud had appeared; and there is no proof of any. It will be no excuse that the sheriff did not know his age, because it was his duty to have enquired and informed himself. At all events his ignorance will not be allowed to prejudice the infant. The appellant came rightly into the Court of Equity for relief; for the twelve months having elapsed, the plaintiff could have sued execution on his own affidavit, without application to the Court, and therefore a bill in equity was his only relief.
    Appellees counsel.
    Although an infant is not generally bound by his acts under age, yet he is in all cases of fraud and deception ; for his age should be considered as a shield for his defence, and not as a sword for destruction : Therefore, although he may, by this plea, protect himself from injury; yet*he cannot use it for the purposes of injustice towards others. His obtruding himself in the present case, upon the public officer, as a person of competency to contract, in order to hinder justice and procure a restitution of the property to the prejudice of others, was a fraud and deception which renders him liable on the bond; especially to innocent assignees and others unacquainted with his age; and who therefore are in no fault.
    Cur. adv. vult.
    
      
      Infants. — The principal case is cited in Saum v. Coffelt, 79 Va. 516. See monographic note on “Infants” appended to Caperton v. Gregory, 11 Gratt. 505.
    
   PENDLETON, President.

Delivered the resolution of the Court.

That as the plaintiff had no day in the Court of Law, his application to a Court of Equity was perfectly regular; and the jurisdiction being admitted, there could be no question upon the merits: Which clearly entitled the plaintiff to relief. That therefore the decree was to be reversed, and a perpetual injunction awarded.  