¶1delivered the opinion of the Court.
¶2During the progress of the trial, Darby, for whose use the suit was brought, asked to have Milburn, the nominal plaintiff, sworn as a witness in the cause, but the court rejected his application, and he excepted. In his motion to set aside the non-suit, he does not assign this as a cause, we therefore conclude he has abandoned his exception to the action of the court, on this point.
¶3The next objection presented, is to the admission in evidence of certain judgments in the case of Waugh & Corthron vs. Genestelle. The objection to these judgments is, that there were three separate notes, and a power of attorney to confess judgment on each, and the judgment confessed was a joint one, for the aggregate amount of the three notes, and not a several judgment for the amount of each note. At most, this would only be an irregularity, working no injury to any one, and to which no one except the defendant himself could object.
¶4The next question grows out of the assumption of the court, in the instruction given to the jury, at the instance of the defendant, that the possession of the property remaining in Genestelle, with permission for him to sell the same, as a retail merchant, was a fraud per se. Some of the earlier decisions of this court, (1 Mo. Rep. 569; 2 lb. 231; 3 lb. 290; 6 lb. 576,) appear to sustain the foregoing principle; but the case of Shepherd vs. Trigg, 7 Mo. Rep. 151; Ross vs. Crutsinger, page 245; and King vs. Bailey, 8 Mo. Rep. 332, recognize a different principle. In the case of Shepherd vs. Trigg, the former decisions are reviewed, and where the facts would appear to warrant, the court have presumed that the decision was upon the peculiar circums*anees of the case as developed in the testimony; but in the absence of any other cause for the decision, this Court felt itself constrained to overrule the cases. The rule now established by this Court is, that the possession romaining’with the individual who professes to have parted with the legal title, is prima facie evidence of fraud only.
¶5The Court then erred in the instruction given, and its judgment ought, for that reason, tobe reversed;
¶6the same is reversed, and the cause remanded.