WITNESSES.

[Warren Circuit Court,

April Term, 1889.]

Swing, Cox and Smith, JJ.

#### ROBERT ROSS v. ROBERT H. TODD, GUARDIAN.

Guardian of an Imbecile Incompetent.

A party to a suit is incompetent to testify as a witness when the opposite party is the guardian of an "imbecile.” The word “insane” in sec. 5246, Rev. Stat., will include "imbecile,” although the section as now amended leaves out the latter word.

Error to the Court of Common Pleas of Warren county.

In the court below an action was brought by Ross against Robert H. Todd, as guardian of Henry Hunt, an “imbecile,” for articles furnished to the imbecile ■before the appointment of the guardian. The guardian denied that the articles were furnished, and the plaintiff offered himself as a witness to prove that fact. Defendant objected to the competency as a witness under secs. 5240, 5242, Rev. Stat. The court sustained the objection, to which plaintiff excepted.

Milton Clark, attorney for plaintiff, contended that plaintiff was a competent witness; that while the statute in sec. 5242 excludes a party from being a witness when the adverse party is the guardian or trustee of either a “deaf and dumb or an insane person,” etc., it does not exclude him when the guardian is of an imbecile person; that the word “imbecile” is not méntioned in the statute; that previous to this, the law (74 O. L., 161), did include the guardian of an imbecile, but after the decision in the case of Messenger v. Bliss, 35 O. S., 587, a statute was passed ■omitting from the section the words “idiot” and “imbecile.” It is claimed, however, by defendant that it comes within the spirit of the law, if not the letter. Bank v. Cornell, 41 O. S., 401; Bomberger v. Turner, 13 O. S., 263, 269; Cochran v. Almack, 39 O. S., 314.

Gov. McBurney, for defendant in error, argued that the first law passed in 1872, named “imbeciles,” but gave no legislative definition of the term. In 1874 {74 O. L., 161; sec. 720, Rev. Stat.), the term “insane or lunatic” is made to include all kinds of mental derangement. The statute, sec. 5240, provides that all persons are competent witnesses, “except persons of unsound mind, or infants too young,” etc.

Section 6302, Rev. Stat.: “An imbecile means a person who not having been born an idiot has become so.”

In sec. 5242, Rev. Stat.: “Imbecile and idiot were left out of the statute, be- > ■cause the legislature by sec. 720 gives a definition of insane and lunatic as embracing all kinds of mental derangements.”

Section 6947: “Lunatic includes every species of mental derangement.”

Mr. Clark in reply: The definition of lunatic in see. 720, is by the express terms limited to that chapter, and does not apply to any other place. Bomberger v. Turner, 13 O. S., 263, 269.

The infirmity of imbecility in the ward is not such as to exclude the opposite party from being a witness.

Cox, J.

Although sec. 5242 does not in terms exclude as a witness a party when the adverse party is the guardian of an “imbecile,” yet we think the judgment of the court below in excluding him was correct. Section 5240 makes persons of “unsound mind” incomnetent as witnesses, and'sec. 5242 excludes from testifying a *386party when the opposite party is the guardian of an “insane person.” We think an “imbecile” comes within the meaning and spirit of the. law. He is a person of “unsound mind,” and is by sec. 5240 an incompetent witness. Whatever changes have from time to time been made by the legislature in sec. 5252, the spirit and intent of that section has never been changed in this particular, that a party shall not testify in his own case where the opposite party is the guardian of a person under such a disability from any mental infirmity as to be incompetent as a witness.

Milton Clark, attorney for plaintiff.

Gov. McBurney, attorney for defendant.