At the argument two objections were urged against the rulings of the presiding judge.

1. He ruled “ that the fact of the deed running to the defendant as aforesaid was enough of itself to make her liable, under the facts in this case.” The deed was made July 29th 1865, nearly a month before the filing of the complaint. The complaint alleges that she is the owner of the mill, mill-dam and privileges therein described, and the answer admits that she has been, since July 29th 1865, seised of certain lands and *187privileges in the town and village mentioned in the complaint, but alleges her ignorance whether they are the same that are mentioned in the complaint. She also alleges a right to flow the complainant’s land by virtue of an arbitrament and award between the complainant and her husband. The award, which she offered in evidence, identifies the property, and proves that the mill, mill dam and privilege, of which she admits her • self to be seised, are the same that are described in the complaint.

But she offered evidence tending to prove that the mill and dam had been erected without her knowledge and consent, before the date of her deed; that the deed was made to her without her knowledge or consent; and that her husband had maintained the mill and dam before and since the date of the deed for his own use, and without her knowledge and consent.

So far as this evidence tended to disprove her seisin of the estate described in her answer, it was immaterial, because her seisin was admitted by the pleadings. And so far as its purpose was to relieve her from the consequences of the acts done by her husband, it was immaterial; for she justifies the maintenance of the dam and the flowing of the land by virtue of the award, and does not in any manner repudiate the acts of her husband. Being the owner of the land, she is made liable to this process by statute, even though the flowing of the land is continued by her mere sufferance. There is nothing in the pleadings or the evidence to show that the dam is maintained against her consent. On the contrary, while her answer sets up a right, the object of the evidence seems to have been to have the dam continued and the petitioner’s land damaged, and deprive the owner of all security for his compensation.

2. The presiding judge ruled “that the agreement of submission and the award could not, in any view of the case, be a defence to this complaint.” It was not contended that Richard Holmes or any one in his behalf had performed the award or tendered performance, or requested the complainant to perform it. The agreement of submission was made October 6th 1864.

The award was made and the parties were notified of it on the *18813th of the same month. By the agreement the parties were to perform the award within thirty days after its publication, under forfeiture of $2000. The referees awarded that Holmes should pay $1683 for the right of flowing.

Even her husband, who was the party to the award, could claim no right to flow the land while he neglected to perform the award; for by the terms of the submission his right was to be under a deed of the complainant, to which he would be entitled only by a payment or tender of the money awarded, and demanding the deed. Much less can the respondent, who was not a party to it, nor even a grantee of her husband, claim any rights under it. Exceptions overruled.