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of appellant's liability as a common-law carrier; and, not having assented to the contract, she was not bound by it. Furthermore, Oeschili, the drayman, was in this case himself a common carrier. (6 Cyc. 369; 2 Words & Phrases, 1317; O. S. L. R. Co. v. Davidson, 33 Utah 370, 94 Pac. 10, 16 L. R. A. (N. S.) 777.) Therefore the relation existing between him and respondent at the time the goods were consigned for shipment was that of shipper and carrier rather than that of principal and agent. The only instructions respondent gave Oeschili with reference to shipping the goods were, quoting her own testimony, which is not denied: "I told him to take them to the depot and ship them." These general instructions gave Oeschili no authority to make a special contract limiting appellant's liability as a common carrier. In the case of Nelson v. Hudson River R. Co., 48 N. Y. 498, the question as to whether a contract limiting a carrier's liability, made by a cartman to whom goods were delivered by the shippers with directions for him to take them to defendant's depot and ship them, was binding on the shippers, was before the court. In the course of the opinion it is said:

"The cartman was not authorized to make this contract. He was merely the servant of the consignors to deliver this box to the railroad, and was clothed with no discretion to act for them. No authority could be implied from his character and business, and his principals were near at hand, where they could be consulted, and they could act for themselves. But he assumed to act for them and to do what they were authorized to do. They were notified of all the facts, and the contract made by him for them was delivered to them. They were informed that, if they had any objection to the contract made by their assumed agent, they should notify the defendant the next day. They made no objection, and expressed no dissatisfaction with the contract, leaving the defendant's agent to suppose that it was satisfactory to them. It seems to me that these facts constitute a most emphatic and unequivocal ratification of the contract." (The emphasis is ours.)

In the case of Seller v. Steamship Pacific, 1 Ore. 409, Fed. Cas. No. 12644, a question involving this same principle was before the court, and in the course of the opinion it is said:

"The drayman, Beeson, was a mere bailee for hire, to take goods to the wharf and deposit them in the charge of the ship. Such employment of itself gave him no authority to make any contract for the shipper, or to assent to any proposition on the part of the carrier to qualify his liability."

Likewise in the case of Russell v. Erie R. Co., supra, after citing with approval the foregoing decisions, the court, speaking through Justice Vroom, says that it is "clearly of opinion that no authority was disclosed which would warrant the making of any contract by the cartman which would limit the liability of the railroad company as common carriers." We do not wish to be understood as holding that a drayman may not, under some circumstances, where express authority is not given him, make a fair and reasonable contract of this kind which will be binding upon the shipper. Where, for example, a shipper has been in the habit of employing a certain drayman to deliver freight at shipping points for transportation, and the drayman, with the knowledge and tacit approval of the shipper, has been accustomed to make all necessary arrangements with the carrier for the transportation of the freight, it might well be said that under such circumstances a just and reasonable contract entered into between the drayman and carrier limiting the latter's liability would be binding upon the shipper.

The contention is also made that respondent was limited in her proof to the goods as described in the bill of lading, and that it was error to admit evidence of the articles wrapped up in the two "bundles of carpet," for the reason that "the railroad company had no notice or knowledge that the plaintiff had packed or intended to ship articles of a different description, quality, class, or designation than those named in the bill of lading," and that it cannot be held to answer for articles of which it had no knowledge. These goods were received and shipped by appellant as one lot. That is, they were all included in one consignment and shipped together as household goods under one rate. This clearly appears from the release or special contract herein before mentioned. No claim is made that any of the goods shipped were improperly listed

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as household goods. In fact, the record shows that all articles which respondent was permitted to prove came within that classification. And the evidence shows that one of the bundles listed by appellant in its bill of lading consisted mainly of carpet, rugs made of carpet, and several Axminster rugs. Therefore appellant could not have been deceived nor misled as to the general character of the contents of the bundle. The other bundle consisted of one piece of carpet, nine quilts, seven pairs of blankets, two feather beds, one of which weighed thirty and the other twenty pounds, ten feather pillows, and numerous other articles of dry goods. Now, it is evident that a glance at a bundle of goods made up as this was would have suggested to appellant's shipping agent that it contained something more than a roll of secondhand carpet. Therefore the contention that appellant, because of the manner in which the goods were packed, had no notice of their general character, and was thereby induced to ship them at a reduced rate, is without merit and wholly untenable. And, further, there is no evidence in the record which shows, or tends to show, that the goods were shipped at a reduced rate. True, the release recites in part that "said freight is shipped by agreement of parties at the lower of said rates," but this agreement was not signed by appellant, nor by any of its agents or representatives; and, when Oeschili signed it, the goods had not been shipped nor transportation charges paid. In fact, the charges for transportation were not paid in advance. And, while the release further recited that the railroad company had two rates, yet it does not specify what either of these rates was. Therefore, for aught that appears in the record, respondent may have been charged the higher rate. The judgment is affirmed. Costs to respondent.

STRAUP, C. J., and FRICK, J., concur.

A. L. BURNHAM, Appellant, v. J. M. STOUTT, ADALINE STOUTT, THE DESERET SAVINGS BANK, a Corporation, Respondents.

No. 1967. Decided January 27, 1909 (99 Pac. 1070).

1. HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-DEBTS OF HUSBAND. When a wife at the time of the marriage had and while that relation subsisted 'continued to have separate means and a separate estate, the courts will protect her property against her husband's creditors the same as the property of others. (Page 253.)

2. DEPOSITIONS-DEFECTS AND OBJECTIONS-SUFFICIENCY OF OBJECTION. Where a party in having a deposition taken chooses the statutory method, requiring that all interrogatories direct and cross be reduced to writing and that the witness answer them in that form, the trial court has no power to allow the party to orally cross-examine the witness when taking the deposition. (Page 254.)

3. DEPOSITIONS-OBJECTIONS-ANSWERING INTERROGATORY STRICKEN BY COURT. It was not error to refuse to exclude an entire deposition because one of the direct interrogatories remaining among the other interrogatories after it had been stricken by the court was answered by the witness; the answer to the stricken in terrogatory being excluded. (Page 254.)

APPEAL from District Court, Third District. Hon. C. W. Morse, Judge.

Action in the nature of a creditor's bill by A. L. Burnham against J. M. Stoutt and others. Judgment of dismissal, and plaintiff appeals.

AFFIRMED.

Geo. W. Moyer and C. S. Patterson for appellant.

J. D. Pardee and Ogden Hiles for respondents.

FRICK, J.

This is an action in the nature of a creditor's bill. The purpose of the action is to subject certain real estate claimed by the respondent Adaline Stoutt to the payment of a judg ment in favor of appellant and against respondent J. M. Stoutt. The material allegations of the complaint, in substance, are: That respondent J. M. Stoutt on August 1st, 1896, became indebted to appellant in the sum of $4,000. That appellant in November, 1903, obtained a judgment for said indebtedness against respondent J. M. Stoutt for the sum (including interest and costs) of $6,332.75, which judgment is in full force and wholly unpaid. That execution had been duly issued and returned unsatisfied. That said J. M. Stoutt on the 5th day of August, 1896, purchased certain real estate with his own individual money, but for the purpose of cheating and defrauding the appellant caused the title to such real estate to be placed in the name of Adaline Stoutt. That said. J. M. Stoutt is the real owner of said real estate, and that he has no other property subject to execution. That said J. M. Stoutt at the time said real estate was purchased and the title thereto was placed in Adaline Stoutt, was insolvent and that $4,000 of the money included within said judgment was used by said J. M. Stoutt in placing improvements upon the real estate purchased as aforesaid. Appellant prayed for the usual judgment or decree in such actions. The respondents answered separately. The answer of J. M. Stoutt in effect, amounted to a general denial, and the answer of Adaline Stoutt, after denying the allegations of the complaint, averred the facts with respect to her purchase and ownership of the real estate described in the complaint, and claimed to be the real and sole owner thereof. After a trial upon the merits the district court, in substance, found the facts as follows: That a judgment was obtained against J. M. Stoutt as alleged in the complaint, and that execution had been duly issued and returned unsatisfied; that on the 15th day of July, 1896, the respondent Adaline Stoutt purchased the real estate described in the complaint, and that she paid therefor with mon