Austin v. Dunham , 65 Me. 533 ( 1876 )

Virgin, J.

A review may be granted to a party who has become insane and been placed under guardianship, upon the condition that the petitioner will stipulate that no objection shall be made to the respondent’s testifying generally upon the trial of the ease in.review. And when the review is granted upon such stipulation made, it is binding upon the legal representative of the petitioner, after his decease.

In cases wherein a party is not entitled “as of right” to a review, the granting or declining of it rests wholly in judicial discretion ; and it may be granted upon such conditions imposed upon the party seeking it, as the court may consider reasonable. Jones v. Eaton, 51 Maine, 386.

In the original case, the defendant was a material witness and obtained a judgment. If a review were unconditionally granted, the insanity equally with the death of the plaintiff would exclude the defendant. R. S., c. 82, §§ 87 and 88. This fact was considered by the judge who heard the petition, and he granted the review upon the condition named, which was considered reasonable and was accepted by the petitioner. His legal representative cannot be permitted to reap the benefits of the review and repudiate the condition without which the review would not have been granted. Exceptions overruled.

Appleton, C. J., Dickerson; Daneorth, Peters and Libbey, JJ., concurred.