Grogan v. Leike , 1903 Pa. Super. LEXIS 157 ( 1903 )

Pee Cueiam,

The appellant’s specifications of error both relate to the admission of the same testimony. In the first it is claimed that the testimony admitted was not cross-examination. This, however, does not seem to us to be well founded. It was in regard to a subject which legitimately grew out of the examination in chief and was calculated to negative the allegation of the plaintiff that the stone which was the center of the line which separated the farms of the plaintiff and defendant had been removed by the defendant and was, therefore, legitimate cross-examination.

It was also a legitimate defense under the plea of “Not guilty.” No special matter was introduced. The appellant speaks of the cross-examination as an 'attempt to establish a consentable line, but there was no evidence whatever in the case anywhere to establish what is technically called in Pennsylvania a “ consentable line.” Not every line assented to by the parties is a consentable line. The question as to what constitutes such a line is treated by Mr. Justice Gibson, in the case of Perkins v. Gay, 3 S. & R. 327, in which he speaks of a consentable line and says : “ The establishment of this kind of boundary is always a matter of compromise in which each party supposes he gives up for the sake of peace something to which in strict justice he is entitled. There is an express mutual abandonment of their former rights, upon an agreement that, whether they be good or whether they be bad, neither is to recur to them on any pretense whatever, or claim anything that he does not derive from the terms of the agreement. Each takes his chance of obtaining an equivalent for everything he relinquishes, and, if the event turn out contrary to his expectations, so much the worse for him. If there be no intention of fraud, no unfair dealing and neither party has more knowledge of the fact misconceived than the other had, the contract will bind.” There is no allegation anywhere in this case, so far as we understand it, that there was any attempt to compromise a difficulty and establish a consentable line. All ‘that the cross-examination of the plaintiff tended to establish was that the plaintiff and his son were upon the ground at the time the defendant set his fence and assented to the location, as being the proper line separating their properties. The defense set up cannot be considered, in any sense, as special matter and we think was properly introduced under the general issue and required no notice under the rule of court cited by the appellant.

Judgment affirmed.