delivered the opinion of the Court.
On examination of the facts in relation to the deposition of Boggs we think it was properly rejected. The plain tiff was notified to attend to the taking of it oil the Saturday afternoon preceding the session of the court at last September term- I lis counsel attended for tho purpose, but ¿he counsel for the defendant omitted to take it, though urged so to do, and gave the plaintiff to understand that he (lid not intend to take it y notwithstanding which, a new notice was served on the plaintiff to attend on Monday forenoon, being the day before court, and the day of the election of governor, senators and representatives; and the place of caption being about thirty-five miles from the place of trial, in addition to the circumstance that the plaintiff is presumed to have been travelling to court on the preceding day, we consider the conduct of the defendant’s counsel on Saturday, as amounting to a waiver of all answer to the objection now urged by the plaintiff, and of tbs right to use the deposition under the circumstances of the case.
In respect to the main question, we are at a loss to discover on what grounds it could have been anticipated that the court should pronounce the instructions of the presiding Judge as incorrect. Those instructions are in perfect accordance with principles which have been settled, sanctioned and recognised over and over again in Massachusetts and in this State ; and the practice in both has been in unison with those decisions. The possession of property sold, by a grantor or vendor, after the sale, though that sale be absolute, is not fraud per se ; it is only evidence, and generally strong evidence of fraud, to be submitted to a jury, with proper instructions, as was done in the present, case. Such continued possession *330may be explained and accounted for on principles perfectly consistent with truth and justice.
The requested instructions were at variance with a series of decided cases. It is needless to cite them, and it would seem to be useless to continue to increase their number.
Judgment on the Verdict.