The opinion of the court was delivered by
Bennett, J.The indictment in this case is predicated upon the neglect of the company to ring their bell or blow their whistle* *586as required by the general railroad law, when about to pass a public highway.
It is objected, that the existence of the corporation is not sufficiently alleged in the information; but we think otherwise. They are designated as being “ The Vermont Central Railroad Company, a corporation existing under and by force of the laws of this state, duly organized and doing business.” The name of the corporation is given, and they are .alleged to be in esse, “ existing under and by virtue of the laws of this state, duly organized and doing business,” &c. In the case decided by this court in Washington county, 1853, in which the indictment was held bad, the court considered that there was no sufficient averment that the railroad company was a corporation in esse. The allegation there was “ a corporation duly chartered and incorporated by ■ the legislature of this state.” There was no allegation that the company had ever accepted their charter, or had organized under it. In that case it could not be claimed that there was a direct averment that the corporation was in esse. At most, it could only be claimed that it was argumentatively alleged to be a corporation in esse.
But a company may be chartered and incorporated by act of the legislature, and yet not be organized, or so far in esse, as to subject them to indictment for neglect of a duty imposed upon them by statute. It was no more necessary that the information should state the time and place, and when and where, the defendants became a corporation, than it would be to state the time and the place of the birth of a natural person. A distinct and positive averment of the existence of an artificial person, is usually all that is required.
We think the offence is well charged in the information. The statute requires a bell to be rung, or the whistle blown at the distance of at least eighty rods from the crossing, and the ringing continued until the road or street shall be passed; and the offence consists in an unreasonable neglect or refusal to comply with the requirements of the statute. The allegation is sufficiently positive that the omission or refusal to,ring the bell, or blow the whistle, was when the engine was running towards the crossing, and not when passing from it. Though the information does not allege, in the first instance, that the company unreasonably neglected, &e; yet *587it does so allege in the concluding part of the information. The duty to ring the bell or blow the whistle, are well charged in the indictment in the disjunctive. The company were not required to do both ; and though, in the breach of this duty, it is alleged the company unreasonably neglected to ring the bell, and unreasonably neglected to blow the whistle, yet this will not vitiate the information. The proof, on trial, would regulate this matter. If we treat this as an assignment in the breach, that the company did not do both, as I think we should; yet if, upon trial, it should be found that they had done either the one or the other, a verdict should be directed for the defendants. The information then is adjudged sufficient.
The case is continued for the assessment of the fine*