
    Rockingham, )
    Dec. 6, 1904. (
    Sanborn Seminary v. Newton.
    A town in which no high school is maintained is not liable for the tuition of children resident therein who attend an academy elsewhere.
    The question of the liability of one not a party to an action will not be considered until he has been made a party, unless it is apparent that he cannot be hold liable under any cii’cumstances.
    Assumpsit, for the tuition of a child residing with his parents in the defendant town. If it should be found that the action should be against the school district instead of the town, an amendment accordingly will be allowed upon terms. Transferred from the April term, 1904, of the superior court by Stone, J.
    
      Thomas Leavitt and Louis G~. Hoyt, for the plaintiffs.
    
      Arthur 0. Fuller, for the defendants.
   Chase, J.

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 for 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 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.  