The evidence of Cross's declarations showed his assent to the line he pointed out, and, with evidence of the assent of the owner on the other side, would tend to prove an agreed line which might be material, although it is neither of the lines claimed by these parties. It does not appear that the evidence was offered or used for the purpose of determining the true line as distinguished from an agreed one, or for any purpose for which it was not competent, or that it was material or prejudicial. The use of the chalk in argument raises no question of law. The propriety of the objective illustration, and the justice of the defendant's having an opportunity to reply if he was surprised (the plaintiff's right of final reply being maintained), were questions of fact to be determined at the trial.

Judgment on the verdict.

CARPENTER, J., did not sit: the others concurred. *Page 342