The position is taken, in the very able and ingenious argument for the defendant, that the term "party" which is used in the statute does not necessarily include municipal corporations, and that it is against the policy of our law so to construe this statute as to make it embrace such corporations. I believe the use of the word party, in the sense of one of two opposing litigants, is too well established to be now questioned. It is so defined in Johnson's folio dictionary. It would be as easy and as natural so to construe the word as to make it mean corporations to the exclusion of individuals, as the contrary. I cannot therefore accede to this view of the case. *Page 85
The position is also taken, that the offence of unlawfully selling spirituous liquor is considered by our law so heinous, that it ought to be considered so far a felony that no private action ought to be sustained until the offender has first been indicted and convicted. But I believe the rule requiring a prosecution and conviction of the offender before allowing a civil action has never been held in this state, and, as the offence is not by statute declared to be a felony, the offender cannot be entitled to this immunity.
The statute under which this action is brought provides, substantially, that when any person intoxicated by liquor unlawfully sold to him shall do any injury to the person or property of others, the person so injured shall be entitled to a remedy by action to recover his damages of the person so selling the liquor. The statute then proceeds in these words: "and in case of the death or disability of any person, either from the injury received as herein specified, or in consequence of intoxication from the use of liquor unlawfully furnished as aforesaid, any person who shall be in any manner dependent; on such injured person for means of support, or any party on whom such injured person may be dependent, may recover."
The part of the statute preceding the words above quoted relates wholly to the remedy for a person injured by another in a state of intoxication. The portion of the statute quoted above refers entirely in its terms to such injured person, and does not refer to the person intoxicated. In order to make the statute embrace the case declared on, it would be necessary to insert after the words "such injured person," the words or such intoxicated person, so that it should read, any person who shall be in any manner dependent on such injured person, or such intoxicated person, c. I do not think that the court would be justified in interpolating into this statute, so highly penal in its character, such important words, by reason of any intention of the legislature which might be supposed to be inferable from the rest of the statute. If the legislature intended this, it has not said it. I do not think that, by any fair construction of the terms of this statute, it can be made in this particular to embrace the case alleged in the declaration.
In the defendant's argument the position is taken, that by the terms "may be dependent," in the statute, in intended persons who at the time of the injury are actually dependent on the plaintiff, or on whom the plaintiff was actually dependent, and that these terms do not embrace the cases in which the party injured, or the party intoxicated, were dependent on themselves, and became dependent on the plaintiffs by reason of the injury or intoxication. For instance: it might be that in this case Smithwick, at the time of the injury, was capable of supporting himself, and so was not dependent on the town; or he might, at the time of the injury, have had a son, able, and obliged, within the terms of our statute, to support him, and so not dependent on the town, and this support might afterwards be taken from him. In order to make the statute embrace this case, it would be necessary to insert after the words "may be dependent," the further words may afterwards be *Page 86 dependent, — an enlargement of the meaning of the statute which I do not think the court ought to make. For these reasons I think the demurrer must be allowed.