It will not be necessary to now consider whether the executor has lost all right to have the erroneous assessment corrected by any form of abatement proceedings. He now insists, as the former opinion suggested he might, upon a more complete record of the original assessment. This necessitates the procurement *Page 179 of an amendment to the record by the town. While under ordinary circumstances such amendment would be ordered as a matter of course, yet that is not always the case. "Generally, amendments are not allowed to affect the vested rights of third parties, or where injustice will be done to any one. Chamberlain v. Crane, 4 N.H. 115; Goodwin v. Smith, 4 N.H. 29; Bowman v. Stark, 6 N.H. 459; Smith v. Moore, 17 N.H. 380; Wendell v. Mugridge, 19 N.H. 109; Baker v. Davis, 22 N.H. 27. No reason has been assigned, and none is perceived, for exempting towns from the operation of the general rule." Sawyer v. Railroad, 62 N.H. 135, 156. The effect of this amendment, if allowed without limitation, would be to aid the town in its present effort to collect a penalty which it has been determined was unlawfully assessed, and which the selectmen refuse to abate. That the abatement would be ordered if the question came before this court is not open to doubt. Upon these facts but one conclusion can be arrived at. An amendment in aid of such a proceeding must be refused.
On the other hand, an entire refusal to correct the assessment record would enable the executor to escape the payment of the original tax. Justice, then, plainly requires such an order as will compel the payment of the tax and relieve from the payment of the penalty. Whether that order be in the positive form — making the amendment upon the town's filing a release of its claim for the penalty — or in the negative form of refusing the amendment upon the payment by the executor of the single tax, with interest at the statutory rate and costs, seems immaterial.
While the question whether an amendment shall be allowed is usually one of fact for the superior court, yet the question whether it can be allowed is one of law. Sawyer v. Railroad, 62 N.H. 135, 159. There is no room for a difference of opinion here, and consequently nothing for the superior court to pass upon.
The executor is ready to pay the single tax, and wishes to do so at once to escape further liability for a high rate of interest. The superior court for Cheshire county is not now in session; and in view of the course pursued by the town's prudential officers when acting on this matter in their judicial capacity, justice appears to require that an order for judgment be now entered. Because of this situation, judgment is now ordered for the town, as of June 6, 1911, for $6,400.26. In Smith v. Jaffrey the order is,
Petition dismissed.
All concurred. *Page 180