
    (First Circuit — Warren Co., O., Circuit Court
    — April Term, 1889.)
    Before Swing, Cox and Smith, JJ.
    Robert Ross v. Robert H. Todd, Guardian of Henry Hunt, an Imbecile.
    A party to a suit is incompetent to testify as a witness when the oppo site party is the guardian of an 11 imbecile.”
    
    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, animbecile.” 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 sections 5240, 5242, Rev. Stats. The court sustained the objection, to which plaintiff excepted.
    
      Milton Qlark, attorney for plaintiff,
    contended that plaintiff was a competent witness; that while the statute in section 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 mentioned in the statute; that previous to this, the law (Ohio L. 74 p. 161), did include the guardian of an imbecile, but after the decision in 35 Ohio St. 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 fflae letter. 41 Ohio St. 401; 13 Ohio St. 269; 39 Ohio St. 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 Ohio'L. p. 161; Rev. Stats., sec. 720), 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. Stats.: “ An imbecile means a person who not having been born an idiot has become so.”
    In section 5242, Rev. Stats : “ Imbecile and idiot were left out of the statute, because the legislature by section 720 gives a definition of insane and lunatic as embracing all' kinds of mental derangements.”
    Sec. 6947 : “ Lunatic includes every species of mental derangement.”
    
      Mr. Clark in reply :J|Thefcdefinition of lunatic in sec. 720, is by the express^terms limited to that chapter, and does not apply to any other”place.f §13JOhio St. 269.
    "" The infirmity of imbecility in the .ward is not such as to-exclude the opposite party from being a witness.
    
      Milton Clark, attorney for plaintiff.
    
      Gov. McBurney, attorney for defendant.
   Cox, J.

Although section 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’ ’ incompetent as witnesses, and section 5242 excludes from testifying a party 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 section 5240 an imcompetent witness. Whatever changes have from time to time been made by the legislature in section 5252, the spirit and intent of that-section has never been changed in ijhis 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.  