case Johnston against wilson if several person be seize in common enter into a  arbitration bind for the purpose of partition be make among they and the  arbitrator allot several part to several person to be hold by they in several  but do not direct any deed to be execute to carry the partition into effect  and to vest the respective share of the land in the several person to who they  be allot the award be bad for want of a complete partition be make SC viner  notorious facts will chief justice deliver the opinion of the court in this  case as follow this be a motion in arrest of judgement after a interlocutory  judgement by default and a writ of enquiry of damage execute in a action of  covenant find on a deed make the twentyfourth of February not between the  plaintiff and the defendant sole but other be likewise party to it and recite  the occasion of the deed to be a large common at Seaton in Durham which the  proprietor bad a mind to enclose and improve and that partition shall be make  as arbitrator shall think proper and that the sea bank shall be keep up as  they shall direct they first covenant mutual for their own act only with each  other and not for the act of any other and therefore they be as several and  distinct as the law will allow and the nature of the thing permit and  afterward they go to particular covenant that they will direct five arbitrator  and that the award be to be make the first of October and then come this  clause that they will agree to all reasonable thing agree on by the arbitrator  towards ascertain the division and set out the respective portion of each and  that the arbitrator may make such partition as they in their judgement think  fit and direct such deed as be necessary to complete such partition this be  part of the covenant and when the partition be make they be to modern hold in  severalty and they covenant that the sea bank shall be keep up as the  arbitrator think fit and that the owner of the land shall pay what the  arbitrator think reasonable and the proportion for survey the land and  establish the award into the hand of Johnston and two other and bind  themselves for performance in three hundred pound the award be make within the  time videlicet modern er p in September and by the award they have make  partition of the great part and the rest which be undivided by the arbitrator  be to be hold in common and they allot to Wilson Whitehead and do twentytwo  acre in lieu of their estate in the common and that they shall maintain fence  c which divide they from the rest then they award as to the sea bank that it  shall be incept up as before except that now they shall contribute towards it  accord to their allot share except Knakenby who be now to pay nothing the sea  not reach his land and then they award thirteen acre to Johnston and that be  repair c as before and then they award that they shall pay their proportion  for establish the aware the plaintiff aver not that he have perform the  covenant but that he have perform his part of the award and then assign these  breach first that the defendant have not make his fence second that he have  not pay his proportion of the money for the repair of the sea bank and these  two he have lie as contrary to the award and not as breach of the covenant and  three that he do not pay his share of the expense of the award and survey and  this be lie as be against the covenant and though the first two breach which  be lie against the award may not be good yet the three may stand and on the  first two breach the plaintiff can have judgement the objection to it be two  first that the award be void and second if there be any collateral breach  assign on which this action may be bring yet all the party shall have join in  the action to the first if the award be void all covenant which be dependent  on the award be so too if the deed which contain the covenant be void the bind  to perform those covenant will be void also for the foundation of all fail and  then every thing build on it must fall but if they be independent collateral  covenant they may stand though the award fall side lev a the principal reason  why this be void be that all thing to be do be relative to the first partition  and if no partition be make all dependent on it must drop and here the  arbitrator have not make a good partition because they have assign no deed of  division nor proper assurance on the other side they cite case to show how  partition may be make without deed and for that reason that this be a complete  division Litt S but this be not a sufficient proof for Littleton say only  between parceners which will not hold with respect to tenant in common and  jointtenants modern and so coke Inst explain it for he say a partition by  parole between tenant in common if execute by livery be good these be plain  tenant in common and this award be not good without deed execute and as before  the statute of fraud a feoff be not good without livery the same reason will  hold still so now no confirmation though by livery if without deed be good  here proper conveyance shall be execute and as they have direct none the award  be incomplete and void there be another answer attempt to be give videlicet  that the award may be good in part and bad in part but to that I answer it be  true it may be so but first this matter be the whole thing submit and second  the first two breach depend on this part of the award and if the award be bad  there can be no judgement for the first two breach for if the several part be  not well allot the plaintiff can have no better title than be bad before the  award and the second breach seem as little support though at first I think  otherwise it be for not pay his proportion for repair pursuant to the award  because one be exempt from pay a proportion which must be if the partition  stand but since it do not that fall also but the three breach be on another  foot it be for a breach of the covenant which be collateral to the award it be  a covenant to pay a proportion of the previous charge of make the award and  whether the award be good or not he be bind to pay his equal share and so  these covenant to do that particular bring we back to the case cite which  prove that though the dependant covenant be void yet a collateral one will  stand and this we think a collateral covenant we shall think this will have be  sufficient if there be no other objection but to the award but there be  another objection which if good will go to this point videlicet that it be a  joint covenant because they have joint interest for the covenant can alter the  nature of the estate and then they modern er p shall join inthe action as    skin comb sand but I answer that this objection depend on their have a joint  interest but here they have several interest and be tenant in common and then  they may covenant several which piits a end to the objection and it be not  like the case in Carth where it be say that damage may twice be recover for  the jury can give n damage but what this particular man have sustain so that  there be no sufficient reason to arrest judgement when I be before ready to  give judgement I conceive two doubt first that the plaintiff have not show  that he have sustain any damage and second that he have not aver that he have  perform his covenant but for the first the jury on the inquest have find that  be do suffer damage and so it must be take for grant and the defendant have  admit it by let judgement pass by default and to the second the distinction be  that where there be mutual covenant not depend on each other the plaintiff in  a action of covenant need not aver that he have perform his part but where the  mutual covenant have a dependence modern on each other as where one be a  consideration for the other there you must aver performance on your part as  Lutw so that the first two breach must be release and judgement take out for  the last