[Albert's Executors v. Ziegler's Executors.] that he forgives the debt, and delivers the bond to the obligor, the debt is extinguished," &c. And there certainly can be no difference if delivered to a third person, with directions to destroy it. The case of Astor v. Pye, referred to and cited 5 Vesey 350, in note, and in opinion of court, 354, was an action at law, on a note endorsed, "Henry Pye pays no interest, nor shall I even take the principal, unless greatly distressed." And this endorsement, though not a testamentary act, was held by the Common Pleas, to which the case had been sent by the master of the rolls for a trial at law, to be a discharge. Eden v. Smyth, 5 Vesey 341, 350, settles the same principle. In Campbell's Estate, 7 Barr 100, the principles for which we contend are admitted. If the bond or note was parted with by the obligee or payee, and placed beyond his control for the benefit of payor or obligor, that instrument cannot be subsequently fraudulently used to his prejudice by the wrongdoer. The case of Lyon et al. v. The Huntingdon Bank, 14 S. & R. 283, certainly settles the principle that the defence offered was admissible. The opinion of the court was delivered by KNOX, J.-We are of opinion that the Court of Common Pleas erred in permitting the jury to find under the evidence, that the single bill upon which this suit was brought, did not truly express the contract between the parties to it. There was no evidence of either fraud or mistake in the execution and delivery of the instrument, and therefore it could not be contradicted or varied by parol. The plaintiff has the right to a trial upon the basis, that the contract was correctly set forth in the instrument upon which the suit was brought. That instrument was in the following words : "Know all men by these presents, that I, John Ziegler, of Latimore township, Adams county, Pennsylvania, do promise to pay to Jacob Albert, of the same place aforesaid, the full interest of $1500, one year and every year until the said Jacob Albert's decease: I, John Ziegler, bind myself, my heirs, executors, and administrators for the same, it being for value received, as witness my hand and seal the first day of April, A. D. 1833. Signed, "JOHN ZIEGLER, [L. S.]" Jacob Albert died on the 5th September, 1851; so that according to the terms of the contract, the plaintiff was entitled to recover the interest on $1500, from the first day of April, 1833, to the 5th September, 1851. But the defendant alleges that the instrument upon which the suit was brought, was cancelled by Jacob Albert in his lifetime: first, by an endorsement upon the [Albert's Executors v. Ziegler's Executors.] back of the paper; and second, by his direction to have the paper burned. The endorsement was without date and was not signed, but was proved to be in the handwriting of the present plaintiff, who was the executor and the only person interested in the estate of Jacob Albert. It was as follows: "This within obligation after my decease shall be of no effect, but till then to be and remain in full force and virtue." Whether this endorsement was made by the direction of the testator, was a question of fact for the jury. If so made, its legal effect was for the court. The plaintiff asked the court to instruct the jury that the endorsement, even if proved to have been made by the holder, would not amount to a release of the interest stipulated to be paid; to which an affirmative answer was given. This was correct. For although the bond could be released in equity by parol, it could only be done by delivery and upon sufficient consideration. That natural love and affection is not a sufficient consideration, is conclusively established by the cases of Kennedy's Executors v. Ware, 1 Barr 445; and In re Campbell's Estate, 7 Barr 100. And that there was no delivery is proved by the endorsement itself, for the bond was to remain good until Jacob Albert's decease. The reason why a parol release of a sealed instrument is good in equity, is because it is there treated as an agreement not to sue, and is executed specifically by a perpetual injunction. But there must be a contract to release, founded upon a sufficient consideration, otherwise it is at the most only an executory gift, subject to the control of the donor, and which can neither be enforced against him nor his personal representative. It is clear, therefore, that the endorsement upon the single bill was not a valid release of the debt, nor would the mere unexecuted testamentary direction for the destruction of the instrument amount to an extinguishment of the debt. But the cancellation of a bond, or its delivery to the obligor, or even to a stranger, with the intent that it shall be cancelled, amounts to an extinction of the debt: Licey v. Licey, 7 Barr 251. If therefore the jury should be satisfied upon another trial, that Jacob Albert in his lifetime gave the bond in question to his grandson, Hiram Albert, and told him to burn it, it would in effect be cancelled and the debt extinguished; and the subsequent preservation of the bond, and the institution of this suit upon it by John E. Albert against the manifest intention and express direction of his father, would be a fraud upon the estate of John Ziegler, which could not be permitted to succeed in a court of justice. If however this allegation is not satisfactorily established, we see nothing in the case, [Albert's Executors v. Ziegler's Executors.] as now presented, which would prevent the plaintiff from recovering the amount of his claim. The endorsement upon the single bill, that it should be of no effect after the holder's death, as well as the declarations of Jacob Albert testified to by John Trump, Jacob Furst, Lewis Myers, and others, although not evidence to vary the written instrument, nor to establish an independent defence, may properly be received as corroborative to the testimony of Nelson Day. For the often repeated declarations of the plaintiff's testator, that he did not intend to claim anything upon the bond from the estate of his. deceased son-in-law, John Ziegler, tends to the more ready belief in his direction for its destruction. Judgment reversed and venire de novo awarded. 29 59 131 158 Whetstone versus Bowser. Where a subterranean flow of water has become so well defined as to constitute a regular and constant stream, the owner of the land above, through which it flows, has no right to divert or destroy it to the injury of the person below. Wheatly v. Baugh, 1 Casey 528. Where a defendant has a prescriptive right to divert a portion of the water of the stream, in an action against him for exceeding the proportion to which he is entitled, it is not necessary for the plaintiff to set forth in his declaration the defendant's right. Such right must be pleaded in trespass, and may be given in evidence under the general issue in an action on the case: but in either case the defendant must show that his rights are sufficient to justify his acts. A verdict in such action does not debar the defendant of the right which he previously had, but establishes that the obstruction complained of in that suit was illegal and unauthorized. In such case it was not error for the court below to confine the jury to the question whether the defendant exceeded his rights: nor in telling them that in causing and removing obstructions, it was not of much importance which party was the aggressor. Where a former suit was brought by the plaintiff, which was compromised by the parties, it was proper to confine the parties to the period between the institution of such former action and the bringing of the present suit. ERROR to the Common Pleas of Bedford county. This was an action on the case brought on the 13th August, 1856, by John Bowser, against Samuel and David Whetstone, to recover damages for obstructing a watercourse, and diverting the water from the plaintiff's mill. The farms of the Whetstones are situated on Cove Creek, and about two miles from the plaintiff's mill. On these farms is a "sink," into which, in ordinary stages, the greater part of the water of Cove Creek enters, and flows in a subterranean channel, or stream, to within a short distance above Bowser's mill, where it appears again on the surface, and forms the power for propelling the machinery of the mill. In an ordinary [Whetstone v. Bowser.] stage, the greater part of the water, in its natural flow, enters into the sink, and the balance flows down a channel which passes near to the houses and improvements of the Whetstones. To keep up this flow during a low stage of water, it was necessary to place a small dam of stone and gravel in the stream, near the sink, which had been maintained by the Whetstones, and those under whom they claimed, for a period of forty or fifty years. In September, 1854, a severe drought having then occurred, Bowser, for the purpose of turning all the water into the sink, tore away this dam. The Whetstones rebuilt, and he tore it away again. It was again rebuilt by the Whetstones, and about four feet higher up the stream, and which it was alleged turned more water away from the sink than the old dam. Thereupon Bowser brought an action on the case against Samuel and David Whetstone, on the 2d October, 1854, for diverting the water. Whetstones also brought an action on the case against Bowser, for diverting the water, and at the same time an action of trespass for entering upon their land, and tearing away their dam. On the 25th April, 1855, these several suits were settled and compromised by the parties, "their rights to the water to remain as heretofore.' The Another drought occurred in 1856, and the controversy was renewed by the Whetstones building up the dam, and Bowser tearing the same away, and the defendants rebuilding it. On the 13th August, 1856, Bowser brought this action on the case for diverting the water. It was admitted, on the trial, that the defendants had acquired a prescriptive right to divert so much of the water from the sink as was necessary for the use of their families and cattle; but it was alleged that by placing their dam at a different place, raising it higher than it had previously been, and by making it closer and more compact, it caused a greater diversion of the water from the sink than they were entitled to. The defendants submitted the following points : - 1. That the defendants had a right to the natural flow of the water past and over their land without alteration or diminution, and if Bowser, or other persons, altered or disturbed the situation or arrangement of the stones and gravel, &c., at the sinkhole, so as to turn in more water than before that time went in, the defendants had a right to go there and rearrange and replace the stones, &c., as they had been. 2. That the right of Bowser to control the operation of the defendants on their own soil, must, in the absence of a written agreement, be made out by an adverse possession continued peaceably under a claim of right, for twenty years at least. 3. That in order to make out a right to the water by use, the use must have been adverse and peaceable, and under a claim of [Whetstone v. Bowser.] right, and if Bowser and those who owned the mill before him, used and enjoyed the water through the sink-hole, by special permission, on request from time to time made, such use is not adverse, and does not make a right. 4. That if the jury believe that the plaintiff, and those under whom he claims for thirty or forty years heretofore, except within a few years past, acknowledge the right of the defendants, and those under whom they claim, to the control of the water, so as to take down past their houses a sufficiency of water at all times for family and farm purposes, then the plaintiff cannot recover in this case, unless they are satisfied that the defendants have taken down the overground channel more than a sufficiency for family and farm purposes. 5. That if the jury believe that the defendants, and those under whom they claim, kept and maintained a dam for the purpose of diverting a portion of the water in the stream from the sink-hole, and conveying the same along the channel of the stream to supply themselves (and other persons having a right to the use of the water) for thirty years and upwards, the verdict must be for the defendants. 6. That if the plaintiff interfered with and destroyed such dam, the defendants had a right to rebuild it, and in doing so, they are only held to an honest effort and endeavour to reconstruct said dam so as to divide the water as before, and even if it should be found that there was a moderate increase in the height, or an immaterial change in the location of said dam, the law will not take notice of it under the circumstances of this case. 7. That the plaintiff, in the absence of proof of a right by prescription, or otherwise, has no right to enter upon the land of the defendants, without their permission, for the purpose of removing obstructions, created by natural causes, to the flow of the water, and that even if obstructions were placed there by the defendants, the only remedy is an action at law. 8. That the compromise made between these parties on the 25th day of April, 1855, is a settlement of the controversy up to that time, except as to the right previously existing, and the jury must not take into consideration acts of the defendants before that date, in making up their verdict. The court below (KIMMELL, P. J.), charged the jury, and answered the points as follows: "The plaintiff has brought this suit to recover damages for obstructing a water right. Bowser is the owner of a mill on Cove Creek. The stream, before it reaches the mill, passes through lands of defendants some two miles above, and on what is called the David Whetstone Farm, the waters of the stream fall into a 'sink,' and reach the mill of plaintiff by a subterranean passage. There is a dry channel through which the creek may have |