shots, when the jury should have been allowed to consider the shots and each and every factor in the case, and to consider whether or not it was necessary for accused to fire, not only the third, but all the shots, and by so doing prevented them from bringing in a verdict of manslaughter, as it is submitted the jury could have rendered a verdict of manslaughter, even though they found it was not necessary to fire the last shot." It is true the accused did not admit, in so many words, that the third shot killed Lizzie Mays, but no other inference can be drawn from the testimony, and subdivision "a" of the third exception is predicated upon this fact.

The sixth assignment of error is as follows: "(6) In charging the jury: 'If you find he was not being pursued by Dooley when the third shot was fired, but Dooley was fleeing from him, then he could not plead selfdefense.' (a) By so charging his honor entrenched on the province of the jury by intimating to them his opinion on the facts that the third shot killed the woman. (b) Because in so charging the jury he invaded the province of the jury by expressing his opinion that, if Dooley was fleeing, accused could not plead self-defense; whereas, it should have been left to the jury to say whether or not, from all the facts, accused believed it was necessary to fire the fatal shot to save his life or himself from serious bodily harm, and whether or not he was warranted as a reasonable being in forming such a belief." This is disposed of by what was said in considering the fourth exception.

6. The error assigned by the seventh exception is as follows: "(7) In reading to the jury the case of State v. Smith, 2 Strob. 77, 47 Am. Dec. 589, and remarking to the jury that said case reads like fiction, because the said case is an extreme case, and not applicable in this case, and not irrelevant to issues in this case, and the said reading and remarks were prejudicial to the rights of the defendant." This exception fails to specify in what particulars the ruling was prejudicial to the appellant.

7. The eighth assignment of error was as follows: “(8) In charging the jury that: 'If a man kills another because he says he insults him, calls him opprobrious epithets, that would not be manslaughter; that is murder.' And in further charging the jury that, 'In order to constitute legal provocation, there must be some violence to the person, as pulling his nose, stepping on his corns, or jostling him off the streets,' when, it is respectfully submitted, that any violence to the near relative of the accused, or previous wrong done to the accused or any of his near relatives, whether attended with any personal violence towards the accused or not, when taken into connection with the vile epithets and abuse heaped upon the accused and his brother, might have been sufficient legal provocation to reduce the killing from murder to manslaughter, and it was error for his Honor not

to so affirmatively charge the jury.” It cannot be successfully contended that the charge set out in this exception was erroneous as a general proposition. Therefore it was incumbent upon the appellant to present requests embodying the additional principle for which he contends in this exception.

The ninth and tenth exceptions are with drawn.

It is the judgment of this court that the judgment of the circuit court be affirmed, and the case remanded to that court for the purpose of having a new day assigned for the execution.

(144 N. C. 107)

FAISON et al. v. ODUM. (Supreme Court of North Carolina. March 12, 1907.)

WILLS-CONSTRUCTION-REMAINDERS RULE IN SHELLEY'S CASE.

Testator devised and bequeathed to his son M. and his heirs, in trust for the use of his son E. for life, certain described lands, and after the death of E., to his issue forever, and in case of his death without "issue," testator devised the lands to E.'s surviving brothers and their heirs, and in case of their death before him, and leaving children, to such issue and their heirs. Held, that the word "issue" was used as a correlative term for "children," and was not sufficient to indicate a purpose to create an estate of inheritance in E., and hence the latter took a life estate in the lands, remainder to his children in fee, and not a fee under the rule in Shelley's Case.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1393-1416.]

Appeal from Superior Court, Sampson County; Jones, Judge.

Ejectment by E. L. Faison and others against S. R. Odum. Plaintiffs claimed title under the will of William Faison, as remaindermen. The trial court held that plaintiffs' father took a fee under such will pursuant to the rule in Shelley's Case, and that plaintiffs took nothing. Plaintiffs thereupon submitted to a nonsuit, and appealed. Reversed. George E. Butler, for appellants. John D. Kerr and T. R. Cooper, for appellee.

BROWN, J. The plaintiffs' right to recover depends upon the construction placed upon the eighth item of the will of William Faison, dated May 18, 1855, and which, relieved of unnecessary surplusage, reads as follows: "I give, devide, and bequeath unto my son, Matthew J. Faison and his heirs, in trust for the use and benefit of my son, Edward, during his life, my Chestnutt lands on the West side of the Six Runs, etc., and after the death of my said son, Edward, to his is sue forever, and in case of his death without leaving issue, I give devide and bequeath the lands devised in trust to him, unto his surviving brothers and their heirs, and, in case of their death before him and leaving children, to such issue and their heirs." In this will the testator devises an equitable estate

for life to Edward Faison, and an equitable estate in fee "to his issue forever." The limitation over to the surviving brothers would not prevent the application of the rule, had the first devise been to Edward Faison and his heirs or the heirs of his body. There have been cases where it was the manifest intention of the testator that the second taker should take, not from him, but from the first taker, then the words "children," "issue," etc., as well as the word "heirs" have been construed in some jurisdictions as words of limitation and the rule of Shelley's Case applied. Brinton v. Martin, 197 Pa. 618, 47 Atl. 841. In the will under consideration there is no manifest intention that Edward Faison should be the root of a new succession, and that those in remainder should take as his heirs. In order to bring the rule into operation, the limitation must be to the "heirs qua heirs" of the first taker. "It must be given to the heirs or heirs of the body as an entire class or denomination of persons, and not merely to individuals embraced within such class." 25 Am. & Eng. Enc. 650, and cases cited. When the devise is to one for life, and, after his death, to his children, or issue, the rule has no application, unless it manifestly appears that such words are used in the sense of heirs generally. 25 Am. & Eng. Enc. 651, and cases cited. In this will the word "issue" is evidently used in no such sense, but as a correlative term for children, and this word is not sufficient to indicate a purpose to create an estate of inheritance in Edward Faison. Hauser v. Craft, 134 N. C. 329, 46 S. E. 756, and cases cited; Starnes v. Hill, 112 N. C. 1, 16 S. E. 1011, 22 L. R. A. 598; Rollins v. Keel, 115 N. C. 68, 20 S. E. 209. That the word "issue" is used in the sense of children is indicated plainly in the ulterior limitation to the surviving brothers, in which the testator uses this language "and, in case of their death before him, and leaving children, to such issue and their heirs."

We are of opinion that Edward Faison, under the will of William Faison, took a life estate only in the land in controversy, and that the plaintiffs, his children, take the land in fee.

New trial.

In the preparation of the opinion in this case the agreement of the parties at the end of the record was inadvertently overlooked, to the effect that, if the court should be adverse to the defendants upon the question presented in the record involving the application of the rule in Shelley's Case, the cause should be remanded for trial upon the other issues raised by the pleadings. The court below having held that the rule in Shelley's Case barred a recovery by plaintiffs, and this court having reversed that ruling, we should have awarded a new trial. It is so ordered. New trial.

A suit by a citizen of the state against a foreign and a domestic railroad company for damages for interference with his easements in streets on which his property abuts caused by the operation of trains thereon pursuant to an agreement between the companies, and for an injunction to prevent further interference, presents a controversy which is not separable, and the foreign company is not entitled to remove the cause to the federal court on the ground of diversity of citizenship within Removal Act (Act Cong. Aug. 13, 1888, 25 Stat. 433, c. 868 [U. S. Comp. St. 1901, p. 509]).

3. EVIDENCE-JUDICIAL NOTICE-PUBLIC REC

ORDS.

The Supreme Court must take judicial notice of the reports of railroad companies to the Corporation Commission; the reports being public records.

4. REMOVAL OF CAUSES CITIZENSHIP OF CORPORATIONS.

While the Legislature may permit a foreign corporation to come into the state and consolidate with a domestic corporation, the foreign corporation availing itself of such permission does not take the domestic corporation out of the state so as to deprive the state of jurisdiction of it in suits against it by citizens of the state, especially where the statute giving the right to consolidate expressly provides that the domestic corporation, together with any corpora tion with which it may consolidate shall remain a domestic corporation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 67.] 5. SAME.

Where a domestic railway corporation takes advantage of Private Laws 1899, p. 212. c. 105, authorizing it to consolidate with a foreign corporation, but declaring that the consolidation shall not oust the jurisdiction of the courts of the state over causes of actions arising in the state, the consolidated corporation, within the state, is a domestic corporation, and, when sued in the state by a citizen thereof, it cannot remove the cause to the federal court on the ground of diversity of citizenship.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 67.]

Appeal from Superior Court, Edgecombe County; Cooke, Judge.

Action by L L. Staton against the Atlantic Coast Line Railroad Company and another. From a judgment refusing to re move the cause to the federal court on the petition of defendant the Atlantic Coast Line Railroad Company, it appeals. Affirmed.

The plaintiff alleged that during the year 1760 one Joseph Howell conveyed to trustees a tract of land to be laid off into streets and

for removal, for that "the defendant the Atlantic Coast Line Railroad Company is not a domestic corporation, but is a foreign corporation created under and by virtue of the laws of the state of Virginia, and is a citizen of Virginia, and is not a resident or citizen of the state of North Carolina; (2) that at the time the plaintiff instituted his said suit, to wit, September 26, 1906, and long prior to said time, the said defendant was, and is now, a foreign corporation, as stated in the preceding paragraph, and a citizen of the state of Virginia; (3) that the plaintiff, L. L. Staton, is a citizen and resident of the state of North Carolina"; that the amount in controversy is the sum of $10,000, and the controversy between the petitioner and the said plaintiff is separable from the controversy between the plaintiff and the codefendant, the East Carolina Railway Company. The petition is verified, and accompanied by the undertaking required by statute. The court denied the petition, and refused to remove the case. Defendant excepted, and appealed.

John L. Bridgers, for appellant. G. M. T. Fountain, for appellee.

CONNOR, J. (after stating the case). The record presents two questions for decision: (1) Is the defendant Coast Line Railroad Company, of Virginia, a foreign corporation? (2) Is the controversy, set out in the complaint, separable as between the plaintiff and the two corporations? It will be convenient to dispose of the second question first. Removal Act 1887, § 2 (Act Cong. Aug. 13, 1888, 25 Stat. 433, c. 866 [U. S. Comp. St. 1901, p. 509]), provides that only those suits may be removed, by reason of diverse citizenship, when the controversy is wholly between citizens of different states. A large number of decisions are to be found in the state and federal reports, in which the term "separable controversy" is discussed. It is not always easy to say upon which side of the line dividing those cases, in which for this cause suits may be or may not be removed, any given case falls. The tendency of the courts has been to narrow the line of cases which are removable, under the act. The petitioner is required to comply strictly with the provisions of the statute, and bring the case clearly within its terms. Hughes on Fed. Proc. 302.

To constitute a separable controversy "the action must be one in which the whole subject-matter of the suit can be determined be tween the parties to the separable controversy, without the presence of the other parties to the suit." Moon on Removal of Causes, § 140. The question in respect to the separability of the controversy must be determined upon an examination of the plaintiff's complaint. Allegations in the petition, respecting the defenses of the several defendants are not to be considered.

In C. & O. Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121, Fuller, C. J., says: "It is conceded that if an action be brought on a joint cause of action, it makes no difference that separate causes of action may have existed on which separate actions might have been brought; and, furthermore, it makes no difference that in a suit on a joint cause of action a separate recovery may be had against either of the defendants." The learned Chief Justice cites with approval from Powers v. C. & O. Ry. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673: "It is well settled that an action of tort, which might have been brought against many persons or, against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy, which will authorize its removal by some of the defendants into the Circuit Court of the United States, even if they file separate answers, and set up different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one, for, as this court has often said: 'A defendant has no right to say that an action shall be severable which the plaintiff seeks to make joint; a separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy; and that is, for all purposes of the suit, whatever the plaintiff declares it to be in his pleadings.'" In that case the defendant railway company and its employés in charge of its train were sued jointly for injury to the intestate of the defendant in error. The employés being residents of the state of Kentucky, the Supreme Court sustained the Court of Appeals of Kentucky in denying the petition for removal. Bellaire v. B. & O. Rail road Co., 146 U. S. 117, 13 Sup. Ct. 16, 36 L. Ed. 910, was a proceeding by the plaintiff municipal corporation of the state of Ohio to condemn a right of way over certain land in which defendant corporation had an interest, together with the other defendants. The railroad company, a Maryland corporation, filed its petition for removal on account of diverse citizenship. Mr. Justice Gray said: "The object of the suit was to condemn and appropriate to the public use a single lot of land. * The cause of action alleged, and consequently the subject-matter of the controversy was whether the whole lot should be condemned; and that controversy was not the less a single and entire one, because the two defendants owned distinct interests in the land, and might be entitled to separate awards of damages. The ascertaining of those interests and the assessment of those damages, were but incidents to the princi. pal controversy divisible by itself, apart from the right of the other defendants, and from the main issue between both defendants on the one side and the plaintiff on the other."

Kohl v. United States, 91 U. S. 367, 23 L. Ed. 449; Winchester v. Loud, 108 U. S. 130, 2 Sup. Ct. 311, 27 L. Ed. 677. "When several persons participate in the commission of a tort, the cause of action accruing to the injured party is joint and several, in the sense that he will have his option to proceed against one or more of the tort-feasors separately or to join them all as defendants in one suit. But if he elects to treat the liability of the defendants as joint, and proceeds against all of them in one action, it will be regarded as involving but one single controversy between the plaintiff on the one side, and all the defendants on the other side, and no one of the defendants can remove the cause to a federal court on the averment that it contains a separable controversy between the plaintiff and himself alone." Black's Dillon on Removal of Causes, § 146; Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 29 L. Ed. 331; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. 730, 29 L. Ed. 899; Little v. Giles, 118 U. S. 596, 7 Sup. Ct. 32, 30 L. Ed. 269. In Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528, it is said: "Not only in cases of joint contracts, but in actions for torts which might have been brought against all, or against any one of the defendants, separate answers by the several defendants sued on, joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be separable, which a plaintiff elects to be joint.

The cause of action is the subject-matter of the controversy, and that is for all purposes of the suit, whatever the plaintiff declares it to be, in his pleadings."

The controversy which the plaintiff, according to his complaint, has with the defendants, grows out of his alleged easement or rights, in the streets upon which his dwelling is located, and the town common in front of his dwelling, by virtue of the trusts declared in the deed from Howell to Moir and others, and subsequent acts of the General Assembly, and the alleged trespass upon, or wrongful interference with, such rights, for which he claims damages. In addition to this cause of action, he says that the interference is continuous; that other and further acts are threatened by said corporations, for the prevention of which he asks injunctive relief. While he sets out at length the acts and conduct of the several defendants, he alleges that they are operating and maintaining their roads, in the matter of which he complains, pursuant to an existing agreement between them, and that the defendant the East Carolina Railroad Company is owned or controlled by the other defendant the Atlantic Coast Line Railroad Company. It is manifest that the alleged wrongs of which he complains, and the continuance of which he seeks to prevent, are inflicted by the acts of both defendants, and for the purpose of this discussion

pursuant to an agreement between them. It requires neither argument nor authority to show that if two railroad companies, by agreement, but each using separate tracks and cars, entered upon and occupied plaintiff's premises, without legal right or authority, he would have a right of action against them jointly. If A. and B., by an agreement so to do, drive their horses and wagons upon my land, can there be any question that I may join them in one action for damages, and certainly before they have done so, I may maintain a bill assuming that I have a right to invoke injunctive relief against them jointly to restrain the threatened trespass? It will be no answer to my action to say that they may have been sued separately. I am entitled to so join them that at the end of the litigation I am compensated in damages or protected against further interference against both the joint wrongdoers. We express no opinion upon the merits of the controversy. Assuming the truth to be as alleged, and that the complaint states, either an actionable injury or threatened illegal interference with plaintiff's rights, we are of the opinion that he is entitled to prosecute his action against the defendants jointly, and that therefore the controversy is not, for the purpose of removal, separable. The second question raised by the record is of more difficulty because of the allegations in the complaint and condition of the record. It is alleged that the petitioning defendant, called in the pleadings the "Atlantic Coast Line Railroad Company, of Virginla" is "a corporation organized and existing under, and by virtue of, the laws of the state of Virginia." We note that the words "of Virginia" are separated from the word "Company" by a comma. We supposed that the plaintiff referred to and was prosecuting his action against the corporation created by chapter 77, p. 208, Pub. Laws 1899, under the corporate name of the "Atlantic Coast Line Company, of Virginia," but upon close inspection of the record it appears that the words, "of Virginia" are intended to be descriptive of the domicile of the defendant corporation, the "Atlantic Coast Line Company." This construction is sustained by reference to the petition in which the corporation describes itself as the "Atlantic Coast Line Railroad Company." The report made to the Corporation Commission, a public record of which we must take judicial notice (State v. Railroad, 141 N. C. 846, 54 S. E. 294), states that the "Atlantic Coast Line Railroad Company" is "made up" or composed of a number of "constituent companies" in the states of Virginfa, North Carolina, South Carolina, Florida, Georgia, and Alabama.

It is further stated that the organization and consolidation is made under the laws of the "State of Virginia." The report further states that the charter under which the consolidation in North Carolina is made is the "act of General Assembly of North Carolina approved February 24, 1899." Private Laws