case Charles green appellant Elizabeth pool respondent saint February Mews dig  go viii thirteen a lease of land be grant with a exception of i etcetera and a  power of work the same and a covenant from the lessor to make satisfaction for  all damage and spoil of ground to arise by work the i at the time of grant  this lease certain coal i upon the premise be demise to I r in a bill bring  for a performance of this covenant against the representative of the lessor it  be necessary to make the lessee of the coal i a party but when at the hear of  the cause a objection be take for want of party the court ought not for that  reason to dismiss the bill with cost brown er p but shall order the cause to  stand over with liberty for the plaintiff on payment of cost to amend his bill  by add proper party order of the court of exchequer reverse all person concern  in the demand or who may be affect by the relief pray ought to be party if  within the jurisdiction of the court but if any necessary party be omit or  unnecessary party be insert the court upon application will in general permit  the proper alteration to be make and this even after the allowance of a  demurrer for such want of party upon argument or on the allowance of such a  plea with or without argument but in these case the amendment be always upon  payment of cost it be the constant aim of a court of equity to do complete  justice by decide upon and settle the right of all person interest in the  subject of the suit to make the performance of the order of the court perfect  safe to those who be compel to obey it and to prevent future litigation for  this purpose it be that all person material interest in the subject ought to  be by themselves or other on their behalf make party to the suit plaintiff or  defendant however numerous they may be so that a complete decree may be make  between those party see Mitfords treatise on chancery plead where the  exception to and modification of this rule be also state sir John delavall be  seize in fee of the manor of SeatonDelavall and Hartley in the county of  Northumberland and of the coal i and colliery there by indenture date the that  of December demise to John Ord all his coal i and colliery within his say  manor and land of SeatonDelavall and Hartley to hold to the say John Ord his  executor etcetera from the that of December for the term of year in which  lease there be a covenant from the lessee in these word videlicet and further  also that he the say John Ord his executor administrator and assign shall and  will now and from time to time hereafter during the continuance of this  present indenture of lease well and true pay or cause to be pay unto Henry  brown green and the other tenant and farmer of the land and ground within the  manor of Hartley and SeatonDelavall aforesaid for the time be such  satisfaction and recompense for damage and spoil of ground do or hereafter to  be do make or occasion by the say John Ord his executor administrator or  assign by sink any new pit or pit lie or lead of coal and make or use any way  or way drift or drift or do any other thing touch the premise as by the  judgement of two indifferent person shall be think fit and reasonable one  whereof to be name by and on the part and behalf of the say John Ord his  executor administrator or assign and the other of they to be name by and on  the behalf of the say Henry green or the say other tenant who shall sustain  such damage and spoil of ground this lease be make in trust for one Mr Roger  and Henry green the appellant father be tenant from year to year of all the  land within the manor of Hartley and die so after who death the appellant  enter and continue tenant until November when sir John delavall by indenture  of lease date the that of November demise to the appellant his executor  etcetera all the message tenement farmholds land and ground within the say  manor of Hartley but with the follow exception viz  Except and always reserve  unto the say sir John delavall his heir lessee or assign all i and mineral of  what kind soever in and under the say premise with liberty from time to time  and at all time during the say term for he the say sir John delavall his heir  lessee or assign to dig sink and make pit and pit in the say premise and to  manage and carry on the same and all those already sink and win to lead and  carry away the coal to be get forth and out of the same and also to make  pitrooms build hoveIs and lodge and to lie waggonway and to repair the same  and to do every other act and thing convenient and necessary in and about the  same he the say sir John delavall his heir lessee or assign pay and allow such  reasonable satisfaction for damage and spoil of ground as be and be mention  and agree and set down in the indenture of lease of the say coalmine grant by  the say sir John delavall to John Roger Esq decease or some in trust for he  and under which the say colliery be now hold and enjoyed  To hold the same  except as before except to the appellant his executor administrator and assign  from Mayday for year at and under brown er p the yearly rend of pound Payable  at Mayday and Martinmas by equal portion and it be by this indenture also  agree that the appellant his executor etcetera shall during the term uphold  and keep the roof and cover of the house belong to the demise premise which be  then cover with thatch well cover and water tie and all the hedge gate and  style in good and tenantable repair and that sir John delavall his heir and  assign on their part brown shall keep in repair all the wall and timber belong  to the roof of such house soon after the execution of the colliery lease Mr  Roger for who Mr Ord be trustee enter and wrought the colliery and after his  death Mr Roger his son as his devisee or administrator in the year determine  the lease accord to a power therein and from that time sir John delavall enter  and wrought the colliery until the that of June when he die have first make  his will and thereof appoint the respondent executrix and residuary legatee Mr  Roger die in November and his son continue to work the colliery till  Michaelmas the appellant from time to time apply to he and his agent for  satisfaction for spoil of ground and proper person be appoint by each of they  to view and settle the damage but the person so name can not agree in their  estimate till Michaelmas when a general estimate be make from Michaelmas to  that time at pound S which the appellant refuse to accept though Mr Roger the  son be content to pay the same Mr Roger the son be always Willing to pay the  appellant what shall be settle for damage accord to Mr ords covenant but the  appellant be dissatisfy therewith apply to sir John delavall and at his  request Mr Roger the son and the appellant again appoint person to make a  estimate but they can not then agree yet the appellant from time to time  receive coal of Mr Roger to the amount of pound and upward on account of  damage and sir John during the continuance of the colliery lease never  apprehend himself liable to make any satisfaction whatsoever for damage or  spoil of ground nor do the appellant ever demand satisfaction of he the  appellant be half a year rend in arrear to sir John at his death amount to  pound S he without make any demand on the respondent for damage immediate  afterward file his bill in the court of exchequer against the respondent for a  discovery of the asset of sir John and that the respondent may come to a  account and make he satisfaction not only for damage for spoil of ground  during the time sir John delavall wrought the colliery but also for all the  time the same be wrought by Mr Roger and for satisfaction for several house  part of his farm which he suggest sir John suffer to fall down for want of  reparation in the wall and timber and the bill also pray a injunction to stay  the respondent from proceed against he at law for the rend in arrear and for  coal which he have receive from sir John the respondent by her answer insist  that she or sir John delavall be not liable to make the appellant any  satisfaction for spoil of ground during the continuance of the colliery lease  to Mr Ord and that she believe the appellant either do receive satisfaction  from Mr Roger or may have receive the same if brown his demand have be  reasonable she admit asset of sir John delavall and offer to appoint a  indifferent person if the appellant will appoint another on his side to adjust  the damage during the time sir John wrought the colliery and to pay in money  what shall be so adjust to prevent further litigation or take any account but  insist that if the house become ruinous it be through the appellant own  neglect to repair they in thatch and to keep they water tie on the that of  November the cause be hear when the counsel for the respondent object that the  appellant want proper party for that he ought to have make Mr Roger the son  and the executor of Mr Ord party to his bill and that the appellant remedy if  any be at law and insist on several other matter as reason for dismiss the  appellant bill whereupon and on hear the appellant counsel and upon read the  colliery lease make to Mr Ord and the lease of the land to the appellant the  court order and adjudge that the appellant bill shall be dismiss with cost  from this order of dismission the present appeal be bring and on behalf of the  appellant it be argue d rider n fazakerley that sir John delavall by his brown  er p lease express agree to pay and allow to the appellant such reasonable  satisfaction for damage and spoil of ground as be mention in the lease of the  coal i and thereby make himself immediate liable to make the appellant  satisfaction and these damage as well during the time that sir John wrought  the colliery himself as while the same be wrought under the lease amount to a  very considerable sum that the agreement under which the appellant be entitle  to such satisfaction be make with sir John delavall only and the lessee of the  colliery not be party or privy thereto it be not necessary to make the  executor either of Ord or Roger party to the bill and the do of it may have  subject the appellant to the payment of their cost but if it be real necessary  to have the executor of Ord and Roger or either of they party it be apprehend  that the court ought to have direct that the appellant on payment of the usual  cost may have be at liberty to amend his bill by add party and not upon the  make of a objection for want of such party to dismiss the bill absolute with  cost that be the usual direction in court of equity when it appear at the hear  of a cause that proper party be want that there can be no reason to dismiss  the bill for want of party touch so much of the appellant demand as arise  during the time that sir John delavall himself continue to work the i which be  from the that of September till his death in June and yet the dismission be  general and the appellant be thereby preclude from bring a new bill for a  satisfaction at least during that time that sir John by his lease to the  appellant agree to keep in repair during the term all the wall of the house  and all the timber belong to the roof of such house and it be full prove in  the cause brown that sir John do not perform that part of the agreement but  that for want of his repair the house several of they fall down and become  ruinous to the great loss and damage of the appellant who be under the  necessity of lie out considerable sum in repair the wall and timber of other  of the house which shall have be repair by sir John delavall and yet if this  order of dismission shall stand the appellant will be deprive of all  satisfaction for the loss he have sustain by the want of repair and of have  any allowance for the money he have expend in the make repair and therefore it  be pray that the say order may be reverse on the other side it be contend I  will t Lutwyche that the appellant have a legal remedy against sir John  delavall and against the respondent as his executrix upon his covenant for  repair the wall and timber which support the roof of the house in case the  same have be out of repair by sir John neglect and therefore the appellant  ought not to have come into a court of equity to seek satisfaction for such  damage that he have also the same remedy against the respondent for damage for  the spoil of his ground during the time that sir John wrought the colliery and  both sir John and the respondent be always ready to make he such satisfaction  for the same as shall be ascertain by two indifferent person accord to the  agreement in the appellant lease but which he have not offer by his bill or  pray that the same may be do that by virtue of the clause in that lease the  appellant may have recover satisfaction against Mr Ord and his representative  for damage and spoil of his ground during all the time that the colliery be  wrought under Mr ords lease and as Mr Roger and his son who do those damage  and be the beneficiary and trust of Mr Ord be answerable for they so the  appellant make his election to receive damage from Mr Roger and his son and  actual receive from they a satisfaction for part of those damage and therefore  he ought to have make Roger the son who with his father have commit the spoil  and the representative of Mr Ord who have covenant to make satisfaction party  to this suit whereby the court may have be able to decree and from who the  appellant shall receive satisfaction the respondent be only answerable from  the time of sir John entry it be therefore hope that the order of dismission  will be affirm and the appeal dismiss with cost but after hear counsel on this  appeal it be order and adjudge that the order therein complain of shall be  reverse and that the appellant shall be at liberty to amend his bill by add  proper party on pay the cost of the day in the court of exchequer jour vol p  brown er p peerage