#### STATE vs. WILMINGTON & MANCHESTER RAILROAD COMPANY.

An indictment charging a Railroad Company, as the owner of a public ferry, for not keeping up the same, must set forth how the duty of keeping up the ferry and transporting passengers became imposed by their charter.

(The cases of Stale v. Justices of Lenoir, 4 Hawks, 194 — State v. Commissioners of Halifax, 4 Dev. 345 — State v. King, 3 Ire. 411 — State v. Patton, 4 Ire. 16, cited and approved.)

The defendants were tried and convicted upon the following bill of indictment:

“ State of North-Caeolina, ) Superior Court of Law, Brunswick County, j Spring Term, 1852.

“The jurors for the State upon their oath present, that the Wilmington &. Manchester Railroad Company, being a corporation duly created by the laws of this State, was, on the sixteenth day of October, in the year of our Lord, one thousand eight hundred and fifty-one, and on divers other days and times till the present time, the owner of a common, and public ferry, for the *235use of all the good citizens of the State, in the county of Brunswick, across Brunswick River; and that the said Wilmington & Manchester Railroad Company was wont, and accustomed to convey and transport, for toll and hire, all the good citizens of the State across the said river, at the will and pleasure of the said citizens, and dren and drere, as said owners and receivers of toll, was by law bound so to do : nevertheless, the said Wilmington & Manchester Railroad Company, on the said sixteenth of October, at and in the county of Brunswick aforesaid, being then and there duly and lawfully applied to by one Christenberry J. Byrd to be transported across the said river, did wholly refuse and neglect so to transport thé said Christenberry J. Byrd^ the said Christenberry J. Byrd being then and there able, ready and willing to pay the ordinary hire and toll for being so transported as aforesaid — in utter disregard of the duty of the said Company, in contempt of the laws,” &c.

After verdict, the defendants’ counsel moved to arrest tire judgment, upon the grounds, — 1. That it was not charged in the bill of indictment that the said Railroad Company organised under the charter, and went into enjoyment and exercise of corporate privileges and powers ; and 2ndly, that the location of the ferry is not sufficiently described in said bill of indictment.

His Honor, Judge Caldwell,

before whom the case was tiled, at the Fall Term, 1852, of Brunswick Superior Court, sustained the motion in arrest; from which judgment the Solicitor for the State appealed.

Attorney General, for the State.

Banks, with whom was Wright, in support of the motion to arrest, insisted, that the indictment should aver the organization of the Company, under the charter, and that it was at the time a subsisting corporation. (Attorney General v. Petersburg Roanoke Railroad Company, 6 Ire., 466,— on-Municipal Corp., 16, — Cole on Crim. Jurisprudence, 26.)

2. “The owner of a ferry in Brunswick Gounty” is too indefinite. (Arch. Cr. PL, 43-45, — State v. Fore, 1 Ire., 378.)

3. The indictment should aver how the Corporation became *236bound to keep a common ferry. (State v. King, 3 Ire., 411, — - State v. Patton, 4 Ire., 16, — State v. Commissioners of Halifax, 4 Dev., 345.)

4. The charter does not make the Company, keepers of a ferry, nor give them power to purchase one; and therefore, as a corporate Company, they cannot keep, a ferry.

Battle, J.

It is unnecessary to consider all the objections ttrged by the defendants against the sufficiency of the bill of indictment, upon their motion to arrest the judgment. We think that it is fatally defective in not setting forth how the duty of keeping a public ferry, and transporting passengers, became imposed upon the defendants. A corporation, being the creature of the law, can acquire only such rights and incur such corresponding liabilities, as may be prescribed in the charter by which it was created. Head v. Providence Insurance Company, 2 Cranch’s Rep., 127,— I he Trustees of Dartmouth College v. Woodward, 4 Wheat. Rep., 518,— The Bank of the United States v. Dandridge, 12 Wheat. Rep., 64. A Railroad Company, for instance, cannot become the owners of a ferry, unless a. power authorizing the purchase is expressly or by a necessary implication given to them ; and they cannot therefore, without such power, have the duty imposed upon them of keeping up such ferry. The bill then, ought to have stated how the defendants, under their charter, became the owners of the public ferry in question, which is an ordinary ferry, and not one necessarily connected with the railroad transportation, and thereby became subjected to the duty of transporting passengers across it. State v. Justices of Lenoir, 4 Hawks’ Rep., 194,—State v. Commissioners of Halifax, 4 Dev. Rep., 345,—State v. King, 3 Ire. Rep., 411,—State v. Patton, 4 Ire. Rep., 16. The indictment being defective in this particular, we must direct the judgment to be arrested, without adverting to the other grounds relied upon by the defendants ; and this opinion must be certified as the law directsi

Per Curiam, Judgment affirmed.