Cushwa v. Forrest

gave the instruction prayed by Mr. Key, and observed that there was this difference between the case of an action by the vendee to recover back the purchase-money on the ground of fraud and that of a vendee resisting, on the same ground; an action by the vendor to recover the purchase-money ; that in the former case the vendee must show that he offered to return the thing sold ; bat when the vendee is defendant, he is not bound to show such an offer to return ; but it is sufficient for him to show the sale' to be fraudulent; for fraud avoids every contract; and this distinction reconciles the cases upon the subject.

It was admitted, by the plaintiff’s counsel, that the burden of proof was on the defendant.