does not aver that plaintiff tendered the balance of the purchase price nor that defendant tendered a deed, or failed to tender a deed.

Our authorities clearly establish this proposition: That, unless otherwise provided for by agreements of the parties, the vendee is entitled to the return of the purchase price if and only if the vendor has failed to perform some contractual duty resting upon him: Sanders v. Brook, 230 Pa. 614; Eberz v. Heisler, 12 Pa. Superior Ct. 388; Hausman v. Johnson, 32 Pa. Superior Ct., 339; Boyd v. McCollough, 137 Pa. 7; Irvin v. Bleakley, 67 Pa. 24; Burchfield v. Alpha Process Co., 45 Pa. Superior Ct. 254. The defendant had not agreed to execute a more formal agreement of sale and, therefore, her refusal to do so did not entitle plaintiff to declare a rescission, and require the return of his advance payment. The mere fact that the memorandum signed by the vendor was extremely informal and, perhaps, fatally indefinite does not entitle plaintiff either to a more formal document or to a return of the consideration; for, even if the agreement were entirely in parol, the plaintiff would not be entitled to the return of the down money as long as defendant remained willing to perform the parol agreement to convey: McGunnagle v. Thornton, 10 S. & R., 251; Thompson v. Sheplar, 72 Pa. 160; Swayne v. Swayne, 19 Pa. Superior Ct. 160; Hathaway v. Hope, 1 Sadler, 119: Cline v. Simpson, 4 Phila. 120; Clever v. Clever, 38 Pa. Superior Ct. 66.

It is not necessary to decide what was required of the respective parties after the payment on November 25, 1921. The memorandum does not fix a date for performance and, therefore, defendant undoubtedly had a reasonable time within which to tender a deed, even assuming that the duty of initiating the completion of the sale rested upon her. That reasonable time certainly extended beyond the following day when plaintiff demanded a return of his money. Thus, she never had any opportunity of tendering a deed and not having had the opportunity she cannot be said to be in default.

Now, July 18, 1922, this cause came on to be heard upon defendant's demand for judgment upon the ques

tions of law raised by his affidavit of defense; and upon consideration thereof it is adjudged that the question of law referred to in the foregoing opinion be and is hereby sustained and that the plaintiff's statement of claim is not sufficient in law to sustain this action; and it is further ordered that, unless an amendment thereof be offered after notice to defendant's counsel and allowed by the court within fifteen days from date of service of this order upon plaintiff's counsel by the Prothonotary, judgment be entered by the Prothonotary, upon praecipe of defendant's counsel, in favor of the defendant and against the plaintiff.

COMMONWEALTH v. WEISEL.

Criminal Law-Fornication and Bastardy-Evidence-Birth Certificate-Act of June 11, 1917, P. L. 773

In a prosecution, under the Act of June 11, 1917, P. L. 773, for (a) fornication and bastardy and (b) failure to support an illegitimate child, defendant cannot introduce in evidence the child's birth certificate for the purpose of showing that the parents were married.

In the Court of Quarter Sessions of Lehigh County. No. 68 June Sessions, 1922. Commonwealth of Pennsylvania, v. John K. Weisel. Motion for new trial. Motion discharged.

Dallas S. Gangewer, Asst. Dist. Atty. for Commonwealth.

Dallas Dillinger, for Defendant.

Reno, J., September 5, 1922. Defendant was tried for and convicted of (a) fornication and bastardy and (b) failure to support an illegitimate child under the Act of June 11, 1917 (P. L. 773). Defendant offered in evidence certified copy of the child's birth certificate signed by the attending physician wherein is stated the prosecutrix's maiden name as mother, the defendant's name as father and that the child is legitimate. This we refused to admit notwithstanding that the Act of June 11, 1915 (P. L. 900 section 21) provides that certified copies of

such certificates "shall be prima facie evidence in all courts and places of the facts therein stated." This ruling is the only reason assigned upon the pending motion for new trial.

The only inference to be drawn from the certificate is that the parents were married at the time of the birth of the child. Indeed it was offered for that purpose; that is, defendant proposed to show by it that the child was legitimate and that, therefore, no prosecution for its support could be maintained under the Act of 1917. Yet defendant testified very positively that he had never married prosecutrix. Why, therefore, should he be permitted to prove that which, if it had any probative value whatever for the purpose for which it was offered, contradicted his own testimony? Either he had or had not married prosecutrix. If he had not married her, his own testimony, added to that of the prosecutrix, was sufficient to establish the fact; if he had married her, that fact was susceptible of better proof than that afforded by the birth certificate of a child whose paternity he refused to acknowledge. Certainly, he cannot establish both. His theory that by proving the certificate he might create a reasonable doubt as to whether or not he had married prosecutrix notwithstanding his own positive assertion under oath that he had not married her, requires that the jury be more impressed by the certificate than by his oath. A reasonable doubt raised in favor of defendant by disbelief of defendant's testimony is a proposition so startling and novel that we cannot judicially father it.

Now, September 5, 1922, motion for new trial discharged.

COMMONWEALTH v. KERN.

Criminal Law-Surety of the Peace-Justice's Transcript Act of March 18, 1909, P. L. 42.

In cases of surety of the peace, the justice's return must affirmatively show compliance with the provisions of the Act of March 18, 1909, P. L. 42.

Said transcript must show affirmatively and by proper recitals (a) a suggestion to the parties of the propriety of compromising their differences; (b) a full hearing and investigation of the facts; and (c)

a specific finding that the evidence shows that the danger of being hurt in body or estate is actual and that the threats were made by the defendant and with intent to do harm. In addition, the bail must be for defendant's appearance forthwith, and not at the next term of court.

In the Court of Quarter Sessions of Lehigh County, No. 135 June Session, 1922. Commonwealth v. George Kern. Motion to quash transcript. Motion sustained.

Dallas S. Gangewer, Asst. Dist. Atty., for Commonwealth.

Dallas Dillinger, for Defendant.

Groman, P. J. and Reno, J., October 2. 1922. The alderman's transcript is defective. A long line of well considered cases hold that in surety of the peace cases the alderman's return must affirmatively show compliance with the provisions of the Act of March 18, 1909, P. L. 42. These cases we approve for reasons stated in an opinion this day filed in Commonwealth v. Lowry, to No. 58 June Sessions, 1922. (10 Lehigh 76).

Unless the alderman's transcript affirmatively, and by proper recitals, shows (a) his suggestion to the parties of the propriety of compromising their differences; (b) a full hearing and investigation of the facts; and (c) a specific finding that the evidence shows that the danger of being hurt in body or estate is actual and that the threats were made by the defendant and with intent to do harm we have no jurisdiction to try the offense and the prosecution must be dismissed. In addition to these requirements the bail must be for defendant's appearance forthwith and not for his appearance at the next term of court: Act of April 27, 1909, P. L. 260.

Now, October 2, 1922, the motion to quash is sustained and the prosecution is dismissed.

YOUNG v. WOODRING.

Mechanics' Lien-Sub-Contractor-Amendment-Act of June 4, 1901, P. L. 453, Sec. 51.

There is a clear absolute right to amend a mechanics' lien, even after the time for filing has expired, unless the effect of the amendment is to substitute "a wholly different party as the defendant with

whom the claimant contracted," and saving, of course, all intervening rights.

Where a mechanics' lien was filed against A. as owner and A. and B., partners, as contractors, and defendants moved to strike off the lien because of claimants being sub-contractors and failing to serve notice of claim on owner, plaintiff can amend by an averment that while A. was the title owner, he was actually the trustee for A. and B., partners, etc., thus making them owners and contractors.

The claimant, however, should present amendments clearly designating the paragraphs of the claim to be amended, and stating particularly totidem verbis the words, if any, which are to be eliminated from the claim as it now stands and those to be substituted therefor.

In the Court of Common Pleas of Lehigh County. No. 22 April Term, 1922, M. L. D. Edward M. Young, Wilson P. Ludwig and Robert A. Young, co-partners trading as M. S. Young and Company, v. George B. Woodring, owner or reputed owner, and W. H. Woodring and George B. Woodring, co-partners trading as W. H. Woodring and Sons, contractors, and Charles B. Kuhns, feoffee and terre tenant. Mechanics' Lien. Rule to Strike off. Petition to Amend. Leave granted to Amend.

Butz & Rupp, for Claimants.

Dallas Dillinger and Dewalt & Heydt, for Defendant.

Reno, J., September 18, 1922. The claimants filed mechanics' lien against, as stated in the caption, "George B. Woodring, owner or reputed owner and W. H. Woodring and George B. Woodring, co-partners trading as W. H. Woodring and Son, contractors, and Charles B. Kuhns, feoffee and terre tenant." By the second paragraph of the claim claimants aver that "the owner or reputed owner, above named, (that is, George B. Woodring) is a resident of the City of Allentown, in the State of Pennsylvania, and the contractors, William H. Woodring and George B. Woodring, registered co-partners, are residents of the same place." The third paragraph avers, in part, that "the name of the owner or reputed owner

was and is George B. Woodring

The said owner or reputed owner was also the contractor associated with his father, George B. Woodring

." George B. Woodring moved to strike off the mechanics' lien alleging that if George B. Woodring is the owner and W. H. Woodring and Son the contractors, the claimants must be sub-contractors and, not having served a written notice of their intention to file a claim as re