delivered the opinion of the Court:
This case originated before a justice of the peace. The bill of exceptions taken on the trial, contains all the proceedings, from which it appears that the plaintiff sued the defendant on a bond given by him for $28. The defendant pleaded infancy, and sustained his plea by proof. The plaintiff then set up a promise made by the defendant after he came of age, to pay the plaintiff $18 in lieu of the bond, but having failed in establishing this promise by disinterested testimony, he applied to the Court (under the statute making the oath of the party evidence in certain cases) to have the defendant sworn to prove his subsequent promise. The Court decided the evidence to be inadmissible, and refused to allow the party to be sworn. To reverse which opinion, this writ of error is prosecuted. It is clear that the plaintiff has mistaken the contract upon which he ought to have brought his action, and that the evidence which he offered was properly rejected. This evidence went to establish a different and distinct cause of action, from that upon which suit was brought. The action was instituted upon a contract under seal, for the payment of a specific sum of money, while that sought to be established on the trial, by the testimony which was rejected, was a parol agreement, entered into at a different time, and for the payment of a different amount. The admission of such testimony would not only have changed the character of the action, and the nature of the defence, but would have been a surprise upon the defendant. The plaintiff should have brought his action upon the subsequent parol promise, and not upon the bond. An infant cannot bind himself by bond, even for necessaries, and when the plaintiff relies upon a new promise made after full age, it is always necessary that he should declare upon the simple contract, which the new promise was meant to establish ; and the infant will then be bound to the extent of his promise, even if the consideration of the original contract, (for which the latter is substituted,) was not for necessaries.
The judgment of the Circuit Court is affirmed with costs.
Judgment affirmed.
Note. See Carver v. Crocker, Ante 265.