Baltimore & Potomac R. Co. v. Fifth Baptist Church
137 U.S. 568 (1891)

Annotate this Case

U.S. Supreme Court

Baltimore & Potomac R. Co. v. Fifth Baptist Church, 137 U.S. 568 (1890)

Baltimore and Potomac Railroad Company v. Fifth Baptist Church

Nos. 121, 122

Argued December 18-19, 1890

Decided January 5, 1891

137 U.S. 568




At the trial of an action of tort upon a plea of nul tiel corporation, evidence that the plaintiff, after filing a defective certificate of incorporation under a general corporation law, acted for years as a corporation, and recovered a judgment as such in a similar action against the defendant without any objection made to its capacity to sue is competent and sufficient to prove it a corporation de facto, and therefore entitled to maintain this action.

Misnomer of a corporation plaintiff is pleadable in abatement only, and is waived by pleading to the merits.

Baltimore & Potomac Railroad v. Fifth Baptist Church,108 U. S. 317, approved.

At a trial by jury in a court of the United States, the presiding judge may express his opinion upon matters of fact which he submits to their determination.

In an action for the continuance of a nuisance, the jury cannot, for the purpose of reducing the damages, take into consideration judgments recovered for the earlier maintenance of the same nuisance.

The case is stated in the opinion.

MR. JUSTICE GRAY delivered the opinion of the Court.

These two actions are in the nature of actions on the case for the continuance of a nuisance to the plaintiff's use and enjoyment of its house of public worship, by the noise, smoke, cinders, ashes, and vapors from the defendant's adjoining engine house, repair shop, and locomotive engines, and by the

Page 137 U. S. 569

obstruction of access to the plaintiff's building by the defendant's unlawful use of its side track in front of it.

The plaintiff heretofore brought in the court below a similar action against the defendant for maintaining the same nuisance from April 1, 1874, to March 22, 1877, and at the trial thereof on the general issue recovered a verdict and judgment for $4,500, which was affirmed by this Court, and the amount thereof, with interest, was paid by the defendant. Baltimore & Potomac Railroad v. Fifth Baptist Church,108 U. S. 317.

The present actions were brought and tried separately; one of them was brought March 24, 1880, for damages since March 24, 1877, and resulted on March 24, 1886, in a verdict and judgment for $6,000, and the other was brought June 11, 1883, for damages since June 11, 1880, and resulted on April 22, 1886, in a verdict and judgment for $7,000. In each of these two actions there were the following proceedings:

The declaration was headed "The Fifth Baptist Church of Washington, D.C., by Its Trustees v. The Baltimore and Potomac Railroad Company," and alleged that the plaintiff was a body corporate in the District of Columbia under and by virtue of the General Corporation Act of May 5, 1870, c. 80,

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