The contention of the defendants is | Judge Jacobs in a well considered opinthat the Act of 1917 violates Article 3, ion in Com. ex rel Cummings v. the Section 3 of the Constitution of Penn- Attorney General, 13 D. R. 521. He sylvania, which requires that the sub- concludes that the test to determine ject of an Act shall be clearly expressed whether a supplemental or amendatory in its title, and it is, therefore, void. act violates Article 3, Section 3 of the We think there is merit in this contention. constitution, is to ascertain whether the It will be observed that the title of the enactment of the supplement would be Act of 1915 is relative to the burial of valid if incorporated in the original act certain indigent deceased widows at the as expressed in its title. The numerous County's expense. The title clearly ex- cases cited and quoted from in that presses the subject of the Act, as it pro- opinion fully sustain this test and sup vides for the burial of widows of de- port our views in the present case. ceased soldiers "leaving insufficient means to defray her necessary burial expenses." Such widows are indigent widows, which is the only kind of soldiers' widows that the Act provides a burial for, at the County's expense. It will hardly be contended that the title would have clearly expressed the subject matter of the Act if it, the Act, had provided for the burial of soldier's widows whether indigent or not. Neither can it be contended seriously that the plaintiff would have been entitled to recover under the Act of 1915, as it is not pretended that his decedent was an indigent widow of a soldier. His claim, therefore, rests entirely upon the amendment contained in the Act of April 12, 1917.

The title of the Act of 1917 contains nothing except notice that it will amend. the Act of April 15, 1915, the title of which it recites in full. This title is sufficient for the enactment of the Act of 1917 of anything that is sufficiently expressed in the title of the Act of 1915, or that is germane to it. Germane means bearing a close relation to, relevant or pertinent. Legislation providing for the burial of all soldiers' widows is not germane to the subject of the Act of 1915, which provides only for the burial of those who are indigent. The mere fact that the word indigent is expressed in the title excludes the right to legislate for any soldier's widow except those who are indigent. Expressio unius est exclusio alterius. Nothing could therefore be enacted in the amending Act of 1917, except what could have appeared in the Act of 1915 under its title. This subject is fully discussed by

Applying this test in the present case we must conclude that the Act of 1917 violates Article 3, Section 3, of the constitution. The title to the original Act only gives notice of legislation affecting the payment of the burial expenses of indigent widows, so that if there was an enactment providing for the burial of widows who were not indigent, notice of such enactment would not clearly appear in the title. As the plaintiff can only recover under the Act of April 12, 1917, which we are of the opinion violates the constitution of Pennsylvania, we must enter judgment for the defendants.

Judgment entered for the defendants.

John A. Nauman, for demurrer and | pels a railroad company to put gates motion.

Chas. W. Eaby and S. V. Hosterman, Assistant District Attorney, contra.

June 21, 1919. Opinion by LANDIS, P. J.

or watchman at public crossings, under penalty of a conviction in the original courts for maintaining a nuisance, nor has any such Act been brought to our attention.

In Commonwealth v. Baltimore and Ohio Railroad Company, 223 Pa., 23, Mr. Justice Brown, in delivering the opinion The indictment in this case charges of the court, said: "The indictment that, on and before the 9th day of Sep- charges that the defendant unlawfully tember, 1918, the Pennsylvania Railroad kept and maintained a railroad track and Company" did in, on and upon the inter- way across a public highway, and did section of the right-of-way of the said use the said track and way for the frePennsylvania Railroad Co., with the pub-quent passing and re-passing of trains, lic road leading from the Harrisburg whereby the use of the said road, street pike to the Manheim pike, unlawfully and and public highway was and continues injuriously erect, construct, establish, to be dangerous, obstructed and straitmaintain, and did thus continue to erect, ened, so that the good citizens of this construct, establish and maintain an un- Commonwealth could not and have not guarded, unprotected and dangerous pub- been able since to pass and re-pass upon lic crossing, commonly known as Ging- and use the said public highway as they richs Crossing, and still doth unlawfully ought and of right should and were wont and injuriously permit and suffer the and accustomed to do.' There is no aversaid unguarded, unprotected and danger- ment that the appellant, in laying its ous crossing to be and remain in, on, track across the highway, created any obupon and across the said public road, struction, and the case does not belong whereby the citizens of the said Com- to the class in which railroad companies monwealth of Pennsylvania could not have been held guilty of maintaining and have not been able since to pass and nuisances because they placed actual obre-pass upon and use the said public structions on the highways in constructhighway, as they ought and of right ing their tracks across them: Northern should and were wont and accustomed Central Ry. Co. v. Commonwealth, 90 to do, to the great damage and common Pa., 300; Commonwealth v. Northern nuisance of all the citizens of the said Central Ry. Co., 7 Pa. Superior Ct., 234. Commonwealth of Pennsylvania, going, The learned judge of the Superior Court passing and re-passing the said public properly said that it is not the existence road at its intersection aforesaid with of the track on the highway that is comthe said railroad crossing." The de- plained of, but the alleged unlawful use fendant company has filed a demurrer of it. Boiled down, the substance of and a motion to quash, and contends that what is charged in the indictment to be no criminal offense is set forth in the the offense of the appellant is the freindictment. quent and rapid passing and re-passing of its trains over the highway, whereby the same was obstructed and rendered dangerous. Nothing more is to be found in the indictment, and counsel for the Commonwealth frankly so admit, for their statement of the question involved is, Can a railroad company be indicted and convicted under the common law for maintaining a nuisance at a grade crossing, arising from the manner of operating its trains, where no permanent physical obstruction of the highway is oc

It is not alleged that the Pennsylvania Railroad Company has occupied and is running its trains over any ground which does not fall within its right-of-way; nor is it asserted that the crossing was unlawfully constructed, or that it was constructed without authority contained in its charter. The gist of the complaint seems to rest upon the ground that it is maintaining an unguarded, unprotected and dangerous public crossing. We know of no Act of Assembly which com

Robinson v. Hodgson, 73 Pa., 202.
Maxler v. Hawk, 233 Pa., 316.

June 21, 1919. PER CURIAM.

evidence that when the money was paid to Julia J. Rowe, on September 9, 1913, she was not the absolute owner of it. The certificate on which it was paid had been issued in her name, and the presumption, unrebutted by the plaintiff, was that even if she had acquired the money from Mary A. Flury, she had honestly acquired it. The verdict for the defendant having been properly directed for the reasons stated, the judgment on it is affirmed.

Common Pleas–Law.

Price Agency
Affidavit of defense.

In an action for the price of goods sold and delivered an affidavit of defense is sufficient which avers that the goods were paid for in a settlement with the agent of the plaintiff by check made payable to the plaintiff who ob tained the money, although it does not name the agent or allege that he had authority to act for the plaintiff.

On March 18, 1908, Mary A. Flury deposited $2,500 in The Lancaster Trust Company and received from it a certificate of deposit, payable to her order, for that amount, one year after date, with interest. In March, 1909, 1910 and 1911, a certificate for a like amount was issued by the trust company, payable one year after date, to the order of J. K. or Mary A. Flury, with interest. Each of these certificates was a renewal of the one issued the previous year. J. K. Flury was the husband of Mary A. Flury. On September 12, 1912, the last certifcate was paid, and, on the next day, one for a like amount was issued by the Sale trust company, payable to the order of Mary A. Flury or Julia J. Rowe, one year after date, with interest. Mary A. Flury died testate April 15, 1913. On the 20th of the following month the certificate payable to Mary A. Flury or Julia J. Rowe was paid to the latter, and, on the same day, a certificate for a like amount was issued to her, payable to her order September 9, 1913. On that day it was paid to her. On the foregoing state of facts William J. Coulter, administrator d. b. n. c. t. a. of Mary A. Flury, brought an action against the estate of Julia J. Rowe, to recover the amount of the certificate which was paid to her September 9, 1913. Two grounds of recovery were laid in his statement of claim. The first was that the money paid by the trust company to Julia J. Rowe belonged to the estate of Mary A. Flury, and the second, that the former held it as trustee for J. K. Flury, the husband of the latter. A verdict was directed for the defendant, and from the judgment on it there is this appeal.

As to the second ground for recovery set out in the statement, it is sufficient to say that if there had been any evidence -as there was not-that Julia J. Rowe held the money in trust for J. K. Flury, now deceased, the only person who could collect it would be his personal representative. As to the first, there was no

In such case the price being alleged in the statement as expressly agreed upon an allegation in the affidavit of defense that no price was expressly agreed upon is sufficient.

Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster Co., August Term, No. 91.

Chas. E. Workman, for rule.
B. F. Davis, contra.

January 18, 1919. Opinion by HAS-
SLER, J.

The plaintiff's claim is for the price of lath and potatoes sold and delivered to the defendant. In his statement he alleges that he sold nineteen hundred lath to the defendant on March 17, 1914, for sixty-two cents per hundred, the price having been agreed upon between them. And that on January 17, he sold to the defendant nine bushels of potatoes, for which he agreed to pay the sum of three dollars and twenty-five cents per bushel.

In his affidavit of defense, the defendant denies that he bought nineteen hun