Spence, J.,
delivered the opinion of this court.
This action was brought by Ilaney against Marshall, for an alleged breach of an agreement, entered into between them, on the 23rd day of December, 1842. By this agreement, Haney, on his part, agreed to bargain and sell to Marshall, in fee-simple, one hundred and twenty-five acres of land in Washington county, Maryland; and Marshall agreed to pay for said land, five thousand, three hundred dollars, to be paid in the manner therein stated, “'that is to say, Marshall agrees and binds himself to convey to said Haney, his heirs and assigns, in fee-simple, by a good and sufficient deed of bargain and sale, clear of all incumbrances, three hundred and twenty acres of land, situate, lying and being in Clark county, and State of Missouri, being the same land which was purchased from the government by a certain Samuel Zellers and John A. Rench, and by the said Rench and Zellers sold to said Marshall; the said three hundred and twenty acres of land in Missouri, is valued at twenty-one hundred dollars, and the said [256]*256Haney agrees to receive said three hundred and twenty acres of Missouri land, in part payment of the said one hundred and twenty-five acres of land, at the price of twenty-one hundred dollars;” and Marshall, on his part agreed to pay Haney the balance of the five thousand, three hundred dollars, as follows: the sum of fifteen hundred dollars, on the first day of April 1842; the sum of eight hundred and fifty dollars, on the first day of April 1843; and the sum of eight hundred and fifty dollars, on the first day of April 1S44. It was Anther stipulated, between the parties, that, upon the payment of the whole of the above purchase money, Haney was to convey the one hundred and twenty-five acres of land to Marshall, and Marshall agreed to convey the said three hundred and twenty acres of Missouri land, at the same time he, the said Marshall, received the deed from Haney, for the one hundred and twentjr-five acres of land as aforesaid.
. The plaintiff, in his declaration, assigned three distinct breaches of this covenant; to which declaration, the defendant pleaded general performance, which plea concludes with a verification, &c., and in this state of the pleadings a jury was sworn to try the issue.
We take occasion here to say, that the pleadings in this cause, have given us more embarrassment, and investigation to dispose of them, than all the legal propositions would have done, under the usual, and proper form of pleading.
At the trial of this cause the defendant proved by J. D. Roman, Esq., “ that certain deeds were produced-in court, at the last term, by Mr. Spencer, the plaintiff’s counsel, during the former trial of this case. And the plaintiff then offered to prove by said witness, that during the said former trial, and sometime after the said deeds were offered in evidence, and after the intervention of other proceedings, the said Spencer was sworn in behalf of the plaintiff in the cause, and testified, that he had found said deeds among the papers of D. G. Yost, deceased, after the death of said Yost, when looking for the agreement, upon which this suit was brought.” To which evidence of ./. D. Roman thus offered by the [257]*257plaintiff, the defendant by his counsel objected, but the court overruled the objection, and admitted the evidence to go to the jury, and the defendant excepted.
We think the court erred in overruling the defendant’s objection and allowing this evidence to the jury, and shall disprove of this exception by a single reference to Greenleaf’s work on evidence, vol. 1, sec. 163, where he says,- “the chief reasons for the exclusion of hearsay evidence, are the want of the sanction of an oath, and of any opportunity to cross-examine the witness. But, where the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth, being no longer wanting, the testimony so given is admitted, after the decease of the witness in any subsequent suit between the same parties. It is also received, if the witness though not dead, is out. of the jurisdiction, or cannot be found after diligent search, or is insane, or sick, or unable to testify, or has been summoned, but appears to have been kept away by the adverse party.” If Mr. fencer the witness, was in court the plaintiff if he wished his testimony to go to the jury, should have had him sworn and examined.
In the further progress of the trial, the defendant proposed to offer in evidence to the jury certain patents and agreements between Wm. M. Marshall and Samuel Zellers and Samuel Zellers and John A. Rench, to the admissibility of which patents and agreements the plaintiff by his counsel objected and the court sustained the objection. The question of the admissibility of this evidence could only be determined by ascertaining the fact, whether they were competent and admissible to prove the issue. The patents were not inadmissible for the reason assigned in the objection made to them by the plaintiff’s counsel. Several of them were original patents, and the otliers were copies properly authenticated by the proper officer. Vide the act of Assembly, 1785, ch. 46, sec. 7; and 5 Peters, 233. The agreements offered with the patents, seem to havebeen the originals, and therefore were not obnoxious to this objection. [258]*258But if these instruments were not inadmissible for the reasons assigned by the plaintiffs, were (hey so for any reason? We think (hey were not admissible. We have before said this question must be determined by ascertaining whether the evidence was competent and pertinent to prove the issue.
Greenleef in his work on evidence vol. 1, sec. 51 says. “The pleadings at common law, are composed of (he written allegations of (he parties, terminating in a single proposition distinctly affirmed on one side, and denied on (he other, and called the issue.” And it is an established rule, which we state as the first rule governing in the production of evidence, that the evidence offered must correspond with the allegations, and be confined to the point in issue.” In order then, to determine the competency and admissibility of these patents and agreements, we must ascertain whether there be any issue in this case, and if (here be, what that issue is. We have before stated that the plaintiff had assigned three special breaches of the defendant’s covenant, to which declaration, the defendant pleaded general performance with a verification, &c.
This cannot be done. The defendant was bound to meet the allegation of the particular breaches. Issue cannot be taken, on a general plea of performance, and the plaintiff, if driven to reply, would be obliged to repeat his declaration.
“ An issue is a single, certain, and material point, arising out of the pleadings of the parties and generally should be made up of an affirmative and.negative.” The breaches assigned in this declaration are special, the plea is one of general performance. 5th Peters, 148, Simonton, vs. Winter and Bowman.
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Spence, J.,
delivered the opinion of this court.
This action was brought by Ilaney against Marshall, for an alleged breach of an agreement, entered into between them, on the 23rd day of December, 1842. By this agreement, Haney, on his part, agreed to bargain and sell to Marshall, in fee-simple, one hundred and twenty-five acres of land in Washington county, Maryland; and Marshall agreed to pay for said land, five thousand, three hundred dollars, to be paid in the manner therein stated, “'that is to say, Marshall agrees and binds himself to convey to said Haney, his heirs and assigns, in fee-simple, by a good and sufficient deed of bargain and sale, clear of all incumbrances, three hundred and twenty acres of land, situate, lying and being in Clark county, and State of Missouri, being the same land which was purchased from the government by a certain Samuel Zellers and John A. Rench, and by the said Rench and Zellers sold to said Marshall; the said three hundred and twenty acres of land in Missouri, is valued at twenty-one hundred dollars, and the said [256]*256Haney agrees to receive said three hundred and twenty acres of Missouri land, in part payment of the said one hundred and twenty-five acres of land, at the price of twenty-one hundred dollars;” and Marshall, on his part agreed to pay Haney the balance of the five thousand, three hundred dollars, as follows: the sum of fifteen hundred dollars, on the first day of April 1842; the sum of eight hundred and fifty dollars, on the first day of April 1843; and the sum of eight hundred and fifty dollars, on the first day of April 1S44. It was Anther stipulated, between the parties, that, upon the payment of the whole of the above purchase money, Haney was to convey the one hundred and twenty-five acres of land to Marshall, and Marshall agreed to convey the said three hundred and twenty acres of Missouri land, at the same time he, the said Marshall, received the deed from Haney, for the one hundred and twentjr-five acres of land as aforesaid.
. The plaintiff, in his declaration, assigned three distinct breaches of this covenant; to which declaration, the defendant pleaded general performance, which plea concludes with a verification, &c., and in this state of the pleadings a jury was sworn to try the issue.
We take occasion here to say, that the pleadings in this cause, have given us more embarrassment, and investigation to dispose of them, than all the legal propositions would have done, under the usual, and proper form of pleading.
At the trial of this cause the defendant proved by J. D. Roman, Esq., “ that certain deeds were produced-in court, at the last term, by Mr. Spencer, the plaintiff’s counsel, during the former trial of this case. And the plaintiff then offered to prove by said witness, that during the said former trial, and sometime after the said deeds were offered in evidence, and after the intervention of other proceedings, the said Spencer was sworn in behalf of the plaintiff in the cause, and testified, that he had found said deeds among the papers of D. G. Yost, deceased, after the death of said Yost, when looking for the agreement, upon which this suit was brought.” To which evidence of ./. D. Roman thus offered by the [257]*257plaintiff, the defendant by his counsel objected, but the court overruled the objection, and admitted the evidence to go to the jury, and the defendant excepted.
We think the court erred in overruling the defendant’s objection and allowing this evidence to the jury, and shall disprove of this exception by a single reference to Greenleaf’s work on evidence, vol. 1, sec. 163, where he says,- “the chief reasons for the exclusion of hearsay evidence, are the want of the sanction of an oath, and of any opportunity to cross-examine the witness. But, where the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth, being no longer wanting, the testimony so given is admitted, after the decease of the witness in any subsequent suit between the same parties. It is also received, if the witness though not dead, is out. of the jurisdiction, or cannot be found after diligent search, or is insane, or sick, or unable to testify, or has been summoned, but appears to have been kept away by the adverse party.” If Mr. fencer the witness, was in court the plaintiff if he wished his testimony to go to the jury, should have had him sworn and examined.
In the further progress of the trial, the defendant proposed to offer in evidence to the jury certain patents and agreements between Wm. M. Marshall and Samuel Zellers and Samuel Zellers and John A. Rench, to the admissibility of which patents and agreements the plaintiff by his counsel objected and the court sustained the objection. The question of the admissibility of this evidence could only be determined by ascertaining the fact, whether they were competent and admissible to prove the issue. The patents were not inadmissible for the reason assigned in the objection made to them by the plaintiff’s counsel. Several of them were original patents, and the otliers were copies properly authenticated by the proper officer. Vide the act of Assembly, 1785, ch. 46, sec. 7; and 5 Peters, 233. The agreements offered with the patents, seem to havebeen the originals, and therefore were not obnoxious to this objection. [258]*258But if these instruments were not inadmissible for the reasons assigned by the plaintiffs, were (hey so for any reason? We think (hey were not admissible. We have before said this question must be determined by ascertaining whether the evidence was competent and pertinent to prove the issue.
Greenleef in his work on evidence vol. 1, sec. 51 says. “The pleadings at common law, are composed of (he written allegations of (he parties, terminating in a single proposition distinctly affirmed on one side, and denied on (he other, and called the issue.” And it is an established rule, which we state as the first rule governing in the production of evidence, that the evidence offered must correspond with the allegations, and be confined to the point in issue.” In order then, to determine the competency and admissibility of these patents and agreements, we must ascertain whether there be any issue in this case, and if (here be, what that issue is. We have before stated that the plaintiff had assigned three special breaches of the defendant’s covenant, to which declaration, the defendant pleaded general performance with a verification, &c.
This cannot be done. The defendant was bound to meet the allegation of the particular breaches. Issue cannot be taken, on a general plea of performance, and the plaintiff, if driven to reply, would be obliged to repeat his declaration.
“ An issue is a single, certain, and material point, arising out of the pleadings of the parties and generally should be made up of an affirmative and.negative.” The breaches assigned in this declaration are special, the plea is one of general performance. 5th Peters, 148, Simonton, vs. Winter and Bowman.
There being no issue joined in this case, the conclusion is irresistible, that evidence could not be competent and admissible to go to the jury, to prove that which was not framed by the pleadings.
Nor is this court concluded by the act of 1825, ch. 117, from the consideration of this question. In the case of Leopard, vs. The Ches. & Ohio Canal Company, 1 Gill, 228, when reasoning upon the operation and effect of this act, the learned judge says “ where an objection is made to the admissibility [259]*259of evidence offered generally in a trial before a jury, then the attention of the court is necessarily called to the pleadings in the cause; the admissibility of the evidence being entirely dependent on them, (ho court, cannot judge of its pertinence or materiality, but by their inspection ” and he assimilates an objection to evidence in this particular to a demurrer or motion in arrest of judgment. We think, therefore, the court did not err by rejecting this evidence.
The court did roí err in rejecting the evidence of Zellers in the third bill of exceptions. Parol evidence was not competent to prove the agency and sale of land. If an issue had been joined on the second breach assigned in the plaintiff’s declaration, we incline to the opinion that judge WsiseVs evidence would have been admissible, but under the pleadings in the cause the court properly rejected it.
The court committed no error by rejecting the evidence of the contents of the receipts mentioned in the fourth exception. The non-production of a written instrument, must be accounted for before evidence of its contents can be given. It is true, in this case, that Zellers testified to the custom of the land office, requiring receipts to be given up, but there was no evidence that these receipts had been surrendered up at the land office. And again, this evidence was properly rejected, because it was not pertinent andcompetcutto any issue in the cause.
If issue had been joined on the second breach assigned in the plaintiff’s declaration, we think the court should not have rejected the defendant’s prayer in the fifth exception. A deed had been executed by Marshall to Haney, for lands in Clarke county, Missouri, and if the lands conveyed by Marshall’s deed, were not the identical lands named and described in the agreement between Marshall and Haney, yet, in the absence of evidence of mistake, misrepresentation or fraud, if Haney accepted this conveyance from Marshall, in discharge of this stipulation in the agreement, of the 23rd of December, 1842, it did discharge him.
It is also the opinion of this court, that in the absence of evidence of mistake, misrepresentation, or fraud, the convey[260]*260anee from Haney to Chaney of the same lands which were conveyed from Marshall to Haney, was a fact which the court might have instructed the jury was evidence that Haney had accepted the deed from Marshall under his agreement of the 23rd of December, 1842, but as we have before said, the court were not wrong in refusing this instruction under the pleadings in this cause.
We think the court erred in permitting the evidence offered by the plaintiff in the sixth exception, to go to the jury, because it was not competent and admissible to prove any issue in the cause. Under a correct state of pleading, it might have been evidence to aid the jury in the assessment of damages, but on the breach only, which was assigned for the non-conveyance of the 320 acres of land in Clarke county Missouri.
We think the court were correct in rejecting the evidence in the seventh section, for the reasons given on the second exception, but wrong in the qualification which they made in (heir instruction.
The court did not err in the eighth exception, for the reason given on the second exception, but if issue had been joined on the plaintiff’s second breach, the time at which the breach of the agreement occurred, was the point of time at which the value of the Missouri land should have been estimated. Vide 1 Brockeribrough's Rep., 218. Letcher and Arnold, vs. Woodson, (note to the opinion of the court.) 6 Wheat. Rep., 109, Hopkins vs. Lee. 6 Har. and John., 297, Cannell vs. M’Clean. If the agreement was admissible to prove the value of the land in 1842, why should not the evidence of tellers be admissible to prove it in 1845?
The court erred in the ninth exception, for the reasons assigned on the fifth exception.
The court, by rejecting the prayer of the defendant in the 10th exception, did not err; there was no issue joined on the second, or any'other breach. If the interest forms a part of the damages which the plaintiff was to recover, and the value of the land at the time of the breach was to form the measure of damages, it is difficult to conceive on what principles the [261]*261jury were to allow interest from a period anterior to the breach. The judgment is reversed on the first, sixth and ninth exceptions, and procedendo awarded.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.