The action cannot be maintained against the town. Union School District v. District, 71 N.H. 269. The leave to amend was made to depend upon this result, and has not been accepted and carried into effect by substituting the school district the town. Until this is done and the school district becomes a party to the action, it will not be bound by any decision of fact or law that is made therein. If made a party it may become defaulted, or settle the action, or prove a different state of facts, or present a different view of the law from those now before the court.
The amendment proposed in Contoocook Precinct v. Hopkinton, 71 N.H. 574, was the substitution of other parties for the plaintiffs, and the question of the town's liability (the town being a *Page 110 party to the action and having been fully heard upon the question) was considered for the sole purpose of determining whether justice required that the amendment should be made. It was said that if the town would not be liable to any one upon the case presented, "it would be worse than useless to make the amendment." In the present case, the corporation whose liability is in question not being a party, it would serve no useful purpose to consider the question, unless it was apparent that there could be no liability under the circumstances; and this is not apparent.
Case discharged.
All concurred.