In chancery causes, we are at a loss to eonceive how a motion to suppress depositions, for irregularity in the execution of the commission, can be advisedly made, until after publication. The authorities are full to' the point, that the proper time for such motion is, after the testimony is published, and before the cause is heard on the merits. — 2 Dan. Ch. Pr. pp. 1140-1, and note 1; Gordon v. Gordon, 1 Stew. 171; Gresley’s Eq. Ev. 213, and note.
Repositions should not be suppressed for irregularity, on motion made for the first time at the hearing of the cause. The reason is obvious; it is then, generally, too late to remedy the error. — Jordan v. Jordan, 17 Ala. 466; Beattie v. Abercrombie, 18 Ala. 9; Cullum v. Smith, 6 Ala. 625; Spence v. Mitchell, 9 Ala. 744; Colgin v. Redman, 20 Ala. 651; McCreary v. Turk, 29 Ala. 244.
Motions of this character should be made at the earliest convenient time after publication of the testimony. "We will not now say this right may not be waived in various ways. — See Malone v. Morris, 2 Moll. 324.
It is said to be a fatal objection to a deposition, if all proper interrogatories be not substantially answered; but the answer need not be to the particular interrogatory. It is sufficient if it appear in any part of the deposition. Nelson v. United States, 1 Pet. C. C. 235; Bell v. Davidson, 3 Wash. C. C. 328.
Applying these rules to the deposition of the witness Nathan Harris, first taken, we feel bound to declare, that *224tbe answer to the 7th cross-interrogatory is evasive and incomplete; and said deposition was rightly suppressed.
"When the chancellor suppressed the second deposition of Nathan Harris, the file contained no evidence that notice had been given of the time and place of taking the same, pursuant to the order made for that purpose. That order required that ten days notice should be given. A petition was subsequently filed by complainant, seeking to reinstate the second deposition, and exhibiting a notice, issued and served six days before the deposition was taken. The chancellor refused to reinstate the deposition. "Without inquiring whether the ruling of the primary court in this regard is revisable, it is a sufficient answer to this, assignment of error, that the notice was not such as the order required; and the chancellor, meting out equal justice between the parties, was not bound to grant the petition. We do not intend by this to disturb the rule, that an objection to evidence on one specified ground, is. a waiver of all others.. — Garrett v. Garrett, 27 Ala. 687. This case rests on a different- principle.
That a bill of sale, absolute on its face, may be established as a mortgage or conditional sale, is, in this State,, no longer open to controversy.- — See West v. Hendrix, 28 Ala. 226, and authorities cited; Parish v. Gates, 29 Ala. 254, and authorities cited; Smith v. Pearson, 24 Ala. 355; Robinson v. Farrelly, 16 Ala. 472; English v. Lane, 1 Por. 328. The proof, in such case, must be “clear, consistent, and convincing.”- — West v. Hendrix, 28 Ala. 226; Brantley v. West, 27 Ala. 542; Bryan v. Cowart, 21 Ala. 92; Freeman v. Baldwin, 13 Ala. 247; Chapman v. Hughes, 14 Ala. 218. The only evidence in 'the record, favorable to the prayer of the bill, is that of Mrs.'Jane Harris and the witness Swan. “We think it too uncertain and unsatisfactory to establish a trust, in opposition to the defendant’s answer,” and the inferences arising from the absolute form of the bill of sale.— Chapman v. Hughes, supra.
As we have left out 'of view the defendant’s testimony, we need not consider the exceptions to it. . The complainant has failed to make out a case for relief.
*225Tlie decree of the chancellor is affirmed, at the costs of the appellant.
"Walker, J., not sitting.