Ross v. Todd

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.