The opinion of the court was delivered, October 9th 1871, by
Sharswood, J.
Wherever one of the parties to a contract has the right to rescind it, and elects to do so, before commencing his action to recover back the money which he has paid, he must give notice to the vendor and offer to return the thing sold. This • was settled in the High Court of Errors and Appeals in 1804, in Summers v. Ritchie, 6 Casey 147, note; s. c. 3 Yeates 531, and has been uniformly adhered to; Turnpike Co. v. The Commonwealth, 2 Watts 433; Roth v. Crissy, 6 Casey 145; Pearsoll v. Chapin, 8 Wright 12. It is easily distinguishable from those eases where an action is brought to recover damages for deceit or for breach of the contract which are in affirmance of it; Borrekins v. Bevan, 3 Rawle 44; Flynn v. Allen, 7 P. F. Smith 482. “That aman should retain the .property which he purchased,” say the court in Summers v. Ritchie, “ and at the same time recover from the seller the whole amount of the purchase-money— that he should be permitted both to affirm and annul the sale — is contrary to reason, to justice and to the authorities which have been produced on the argument.” It was recognised, however, as an exception to the rule in Babcock v. Case, 11 P. F. Smith 427, that if the thing, the consideration of which is sought to be recovered back, be entirely worthless, there is no duty to return it. The soundness of that determination cannot be questioned: Lex neminem cogit ad vana seu inutilia. This may sometimes be —as it was in that case — a mere question of law. What had been sold the law adjudged to be an utterly worthless tax title, under a sale of seated land as unseated. It would have been a waste of time, labour and paper to have reconveyed it, and a mere idle ceremony to have tendered a deed. The same law would hold when forged bank notes or other counterfeit securities are the subject-matter of the contract. No honest use could be made *254of them by the vendor, and they need not therefore be returned or tendered. Ordinarily, however, it is a question of fact for the jury, as where there have been sold, under circumstances entitling the vendor to rescind, shares of stock of a company entirely insolvent, or which has become insolvent, and the shares valueless in point of fact before suit. If the shares of the Glenville Coal Company, which were the subject of the sale in this case, when the contract was rescinded and the suit brought, were of no value, and the jury had so found, the principle of Babcock v. Case would have applied. It was not intended in that case to overrule former decisions, but to recognise that where their reason did not apply, the rule itself should cease. It was not held or intimated in that opinion, that a tender or offer to return the thing on the trial was in all cases sufficient. “We do not impinge,” said Chief Justice Thompson, “ on the case of Pearsoll v. Chapin, 8 Wright 12. That case was well decided on its facts.” In Pearsoll v. Chapin it was held that where a sale of land has been induced by the false and fraudulent representations of the vendor, the vendee must first tender a reconveyance before he can recover back the price paid. “ He (the plaintiff), ” said Chief Justice Lowrie, “ is not suing for a rescission or to obtain one, but for the results or consequences of a rescission, on the ground that he has already exercised his right to rescind given him by the law.” The technical reason undoubtedly is, that the plaintiff’s title to recover must be perfect when his suit is commenced. This is a very simple and intelligible rule, applicable in all cases, which it would be dangerous to innovate upon: Thomas v. Shoemaker, 6 W. & S. 179; Duncan v. Lawrence, 12 Harris 154. But a substantial reason for requiring a return or tender before suit, where the party assumes the right to rescind a sale, is that he may not play fast and loose down to the last moment. The defendant should have the option to join in the rescission, and take back the property at the earliest period. He must have notice, which is given to him when the thing is offered back and the price paid demanded. We think, therefore, that there was error in the answers of the learned judge below to the plaintiff’s second and third points, and to the defendant’s first point, and in the general charge as specified in the first, second, third and eighth assignments of error. We discover no other error. The onus of proving that Burkholder was a partioeps criminis, and made the contract, knowing that Beetem the vendor was violating the law, was clearly upon the defendants. The primá; facie presumption is always in favor of innocence, so much so, as sometimes to require the opposite party to prove a negative: 1 Greenl. on Ev., § 80. If, as complained of in the seventh assignment, the learned judge submitted a question to the jury, of which there was no evidence, *255it did the plaintiffs in error no injury, for the burthen of proving that fact was upon them.
Judgment reversed, and venire facias de novo awarded.