¶1gave 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.
¶2It was admitted, by the plaintiff’s counsel, that the burden of proof was on the defendant.