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think, also, the statute may be read and construed as though instead of the words "to commit larceny or any other felony," it contained the words, "to commit petit larceny, grand larceny or any other felony," or, as was said in Hall v. State, 48 Wis. 688, 4 N. W. 1068, a case exactly in point, "the statute must be read as though instead of the words 'or other felony' it had been written ‘or any other offense for which the offender on conviction shall be liable by law to be punished by imprisonment in the state prison.'" Continuing, the court says: "We think the term 'or other felony' is not a limitation on what precedes, but is inserted to extend the scope of the section to other offenses not specifically named therein." In this connection it might be well to observe that evidently the intention and purpose of the Legislature, in amending the law defining burglary and housebreaking, was to overcome the embarrassment which so often arises in prosecutions for burglary where it becomes a doubtful question whether the crime was committed in the night or in the daytime. We think this conclusion is borne out by the concluding part of section 4336, as amended (Sess. Laws 1905, p. 16, c. 39). which provides that "where, in a prosecution for burglary in the first degree, the question as to whether the crime has been committed in the nighttime or in the daytime cannot be definitely arrived at by the jury, a verdict of guilty of burglary in the second degree may be found: provided, the other elements of the crime of burglary in the second degree have been proved." It is a matter of common knowledge that practically all offenses against the law of burglary are committed with intent to steal, and, in nearly all cases, except when the defendant is caught with the goods, the extent of the larceny which he intended to commit cannot be proved. Therefore, if the state should be required to prove a specific intent to commit grand larceny on the part of the offender when the charge is burglary in the first degree with intent to steal, it would be, in the majority of cases, impossible to procure convictions, however guilty the accused might be. We do not believe the Legislature intended to put upon the state this burden and thereby, in effect, grant immunity from punishment to all criminals who may be charged with burglary in the first degree with intent to steal, for, as we have pointed out, it would be next to impossible for the state to prove a specific intent to commit grand larceny, and, under the holding of the trial court, unless such Intent is alleged and proved no conviction can be had.

The views herein expressed are supported by the following authorities, in which statutes similar to the one under consideration are construed: Hall v. State, supra; People v. Stapleton, 2 Idaho (Hasb.) 50, 3 Pac. 6; Pooler v. State, 97 Wis. 627, 73 N. W. 336; Kelly v. People, 132 Ill. 363, 24 N. E. 56.

A jury having been impaneled and sworn

to try the case, the defendant was thereby placed in jeopardy, and cannot again be tried for the crime charged in the information, or for any offense included therein. This ap peal was taken and the case is decided for the sole purpose of determining the question of law involved.

Judgment reversed.

STRAUP and FRICK, JJ., concur.

(31 Utah, 172)

HOGGAN v. CAHOON. (Supreme Court of Utah. Oct. 26, 1906.) 1. APPEAL QUESTIONS REVIEWABLE.

On appeal in a law case, where the evidence is conflicting, the only question the appellate court can consider and determine is whether there is any legal or competent evidence on which the judgment and verdict can rest.*

2. WITNESSES-DISCREPANCIES IN TESTIMONY

-EXPLANATION.

Defendant, having testified that plaintiff was not his agent for the purpose of taking possession of certain chattels under a mortgage and that plaintiff had acted in his own behalf, and that defendant had no interest whatever in such chattels, was properly permitted to explain that testimony given on a former trial between the parties to the effect that plaintiff had acted as such agent was given under representations of plaintiff's alleged attorney that as the mortgage was executed to defendant, although really for the benefit of plaintiff, and for convenience only, it was necessary to so testify, independently of whether such alleged attorney was in fact plaintiff's attorney or whether plaintiff was himself present when such representations were made or not.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1261, 1262.]

Appeal from District Court, Sanpete County; Ferdinand Erickson, Judge.

Action by James W. Hoggan against James C. Cahoon. From a judgment for defendant, plaintiff appeals. Affirmed.

L. Larsen and W. D. Livingston, for appellant. Jacob Johnson, for respondent.

FRICK, J. This action was prosecuted by appellant against respondent to recover upon an alleged indemnity. The appellant in his complaint substantially alleges as follows: That the respondent constituted and appointed appellant agent for respondent to take possession of, and deliver to respondent, certain goods and chattels upon which respondent held a chattel mortgage. That appellant, as the agent of respondent, and at his request, went from Manti, Sanpete county, Utah, to Payson, Utah county, Utah, and, by virtue of said mortgage, took possession of certain goods and chattels specified in said mortgage as such agent for, and in behalf of, the respondent and took the same to Manti, the home of both appellant and

*Croco v. O. S. L. R. Co., 18 Utah, 311, 54 Pac. 985, 44 L. R. A. 285; Kennedy v. R. Co., 18 Utah, 325, 54 Pac. 988; Mangum v. Bullion, Beck, etc., Min. Co., 15 Utah, 534, 50 Pac. 834; Anderson v. Min. Co., 15 Utah, 22, 49 Pac. 126; Braegger v. O. S. L. R. Co.. 24 Utah, 391, 68 Pac. 140.

respondent. That thereafter, at Manti, the
respondent ratified and approved the taking
of said chattels, and that appellant took pos-
session of said chattels in good faith and
in the belief that respondent had lawful
right thereto. That thereafter, one S. S.
Johnson commenced an action against ap-
pellant claiming title to said goods and chat-
tels superior to the right and title of respond-
ent, and in said action recovered judgment
against appellant as for the conversion of
said goods and chattels, in the sum of $300,
and costs amounting to $13.90, all of which,
by reason of said judgment, appellant was
compelled to pay and did pay. That, in ad-
dition to the foregoing, appellant makes
claim for attorney's fees and other costs and
expenses expended by him in defense of said
action, amounting to the sum of $109.95.
That said respondent had due notice of said
action and refused, and still refuses, to re-
pay appellant the amounts aforesaid, except
the sum of $183.50, leaving a balance due
appellant from respondent in the sum of
$240.35, for which amount he prayed judg-
ment. To this complaint respondent answer-
ed by general denial and by setting up an
affirmative defense wherein respondent, after
setting forth in detail the history of the
whole transaction, in substance says: That
one J. G. Stutts was, on the 6th day of Janu-
ary, 1898, indebted to respondent in the
sum of $280; that on said date he executed
and delivered to respondent a note for said
amount and secured the same by giving him
a chattel mortgage upon the goods and chat-
tels referred to in plaintiff's complaint;
plaintiff's complaint;
that said note and mortgage became due on
the 6th day of April, 1898, and that a new
mortgage was then executed by said Stutts
due and payable in 90 days thereafter; that
appellant and respondent on the said 6th
day of April agreed to and did obtain said
$280 from the bank at Manti, and gave their
note therefor due in 90 days from said date;
that said $280 so obtained was agreed to be
and was paid to respondent as full payment
of said claim against said Stutts and that ap-
pellant then and there took said mortgage to
secure himself on said $280 note and that,
the appellant was to collect the same, and
respondent had no further connection there-
with; that said mortgage was taken in the
name of respondent for convenience merely
for the reason that the original mortgage was
made to him, and for the purpose of cutting
off intervening claims if any there might be;
that said mortgage and the debt thereby se-
cured belonged to appellant. and respondent
then disclaimed, and had no further interest
therein; that said appellant, in taking said
mortgaged property, acted in his own behalf
and for his own benefit. Wherefore re-
spondent prayed judgment that appellant
take nothing by this action. To this answer
appellant interposed a demurrer, which was
sustained in part and overruled as to other
parts; whereupon an amended answer was

filed containing substantially the facts above set forth. A trial to a jury was duly had upon the issues set forth above, which resulted in a verdict and judgment for respondent of no cause of action. Appellant, in due time, filed a notice of motion for a new trial setting forth the ordinary statutory grounds, which motion was overruled and, after settling his bill of exceptions, he prosecutes this appeal.

There are three assignments of error that we can consider, namely, (1) error in overruling the demurrer to the answer; (2) that the evidence is insufficient to justify the verdict and hence does not support the judgment; and (3) that the court erred in admitting certain evidence against appellant's objection, which is more fully specified hereafter.

The error assigned in respect to the overruling of the demurrer to the answer was not pressed by counsel for appellant in this court on the oral argument, and as, in our judgment, no error was committed by the lower court in that respect, we will not consider that matter further.

! As to the error assigned that the evidence is insufficient to justify the verdict of the jury and, hence, does not support the judgment, we, after a careful perusal of all the evidence in the bill of exceptions, are convinced that the evidence justifies the one and. hence, supports the other. Moreover, the evidence is in sharp conflict and, hence, the only question, this being a law case, that this court can consider and determine is whether there is any legal or competent evidence upon which the judgment and verdict can rest. In other words, are they supported by any legal or competent evidence? If such be found to be the fact, then the matter passes beyond the authorized powers of this court for the reason that when there is any evidence of the character above stated the question ceases to be one of law merely, but enters the domain respecting the weight of the evidence, which domain this court is by both the Constitution and the statutes prohibited from entering. This has often been decided by this court, as is disclosed by numerous decisions, among which are the following: Croco v. O. S. L. R. Co., 18 Utah, 311, 54 Pac. 985, 44 L. R. A. 285; Kennedy v. R. Co., 18 Utah, 325, 54 Pac. 988; Mangum v. Bullion, Beck, etc., Min. Co., 15 Utah, 534, 50 Pac. 834; Anderson v. Min. Co., 15 Utah, 22, 49 Pac. 126; Braegger v. O. S. L. R. Co., 24 Utah, 391, 68 Pac. 140.

The only other error that we are permitted to consider is the one respecting the admission of certain evidence against appellant over his objection. The assignment of error upon this point is stated by him as follows: "Error in law occurring at the trial and excepted to by the plaintiff (appellant), to wit: The permission given defendant (respondent) to testify over plaintiff's (appellant's) objection to a conversation had between defend

ant (respondent) and one
presence of plaintiff (appellant)." For rea-
sons satisfactory to us we withhold the name
of the person referred to, and such person
will hereafter be referred to as Mr. Blank.
By reference to the bill of exceptions it is dis-
closed that the alleged error arose under the
following circumstances, viz.: When the re-
spondent was upon the witness stand giving
testimony in his own behalf, appellant's
counsel, for the purpose of impeachment,
asked the witness, in substance, whether he
had not, at another trial, at a time previous
to the time at which the witness was then
testifying in this case, testified to facts differ-
ent from what he was then testifying. The
matter enquired about was whether the wit-
ness had, at the previous trial, testified that
the appellant, in going after and taking the
chattels set forth in the complaint and an-
swer in this action, had so taken them as an
agent for and in behalf of respondent. The
respondent in this case had testified in chief
that appellant was not his agent for that or
any purpose connected with the matters in
controversy, and that appellant had acted for
and on his own behalf in what he did in re-
spect to said chattels, and that respondent
had no interest whatever therein. The re-
spondent admitted testifying in the former
case, and stated that he did not remember

out of the|gested that Mr. Blank, at the time of the alleged conversation, was acting as the attorney for appellant, and that the conversation was permissible on that account. The trial court then ruled that in order to make the conversation admissible, respondent must first show that Mr. Blank represented appellant as his attorney, or that appellant was present at the conversation. After consideraable testimony as whether Mr. Blank was acting as the attorney for appellant at the time, and the court apparently being satisfied that Mr. Blank acted as such attorney, and that he represented appellant at that time, overruled the objection, and permitted respondent to testify further. Whereupon respondent explained fully the circumstances in relation to the apparent conflict in his testimony respecting what he testified to at the present and former trials. Among other things, he testified that Mr. Blank explained to him that if the matter of agency was brought up at the trial at Provo, then he (respondent) would be required to answer that the appellant acted as his (respondent's) agent in taking possession of the chattels taken under the mortgage set forth in the pleadings herein. That when respondent told Mr. Blank that that was not the fact, but that appellant acted for himself and on his own account, Mr. Blank said: "It don't make any difference, that's the way the law looks at it," Mr. Blank basing his statement upon the fact that the mortgage was made to read in favor of respondent. Respondent, while admitting this, contended, however, that while the mortgage was made to read in his name, it was so made for convenience only, and that it was in fact appellant's mortgage, and that in truth and in fact appellant did not act as respondent's agent.

It will be observed that the testimony was. not offered, nor, indeed, could it be considered for the purpose of establishing a material or essential part of the issues in the

It was offered and admitted for the sole purpose of explaining the conflict respecting the testimony of respondent arising out of his testimony at the former trial when com

the exact import of his testimony at said former trial, but admitted that, if it appeared from the record of the testimony of the former trial that he (respondent) testified that appellant acted as the agent of respondent in respect to the taking of said chattels, he would not deny that he so testified, but if he did so testify, it was for certain reasons that he desired to explain. Counsel for appellant refused the opportunity to make such explanation or give the reasons why he so testified. When counsel for appellant had concluded his examination of the witness, counsel for respondent, on redirect examination, propounded to him the following question: "Q. Mr. Cahoon, you stated that in reference to your testimony at Provo that some advantage was taken of you, and you wanted to explain in reference to that matter. You may now explain what you de-pared with his testimony at this trial respectsired to say before?" To this the witness made the following statement: "A. When we went down he (appellant) took Mr. Blank along with him, and we got to talking the matter over *** and Mr. Blank, says he 'If this question is fetched up whether Mr. Hoggan is here as your agent or not,' says he, you will have to answer it as he was, because it is made in your name.' 'Well,' says I, 'he was not acting as my agent." At this point counsel for appellant objected to the witness stating any conversation he may have had with Mr. Blank out of the presence of appellant. On being asked whether appellant was present at the time of the alleged conversation, the witness answered: "I think he was." It was then sug

ing the matter of appellant's agency. It was not sought to bind the appellant by anything Mr. Blank may have said to respondent, neither was it at all material whether what Mr. Blank said was true or otherwise, but it was both important and material for the jury to know whether respondent had in fact knowingly and willfully testified to the same fact in different ways. It was proper for appellant's counsel to show, if he could, that respondent took a different position respecting a material fact in the present trial to that assumed by him in the former one. It was just as proper for respondent to explain why he made conflicting statements and thus give the jury the benefit of the true conditions that induced him to make them. Without

the explanation, respondent stood impeached; with it the jury could place a correct estimate on the weight to be given to his testimony. It was for the jury to say whether his explanation was reasonable or otherwise, and whether they would believe his first or his last statement. It is always competent for a witness, or a party if he become a witness, to explain either real or apparent discrepancies in his testimony so that the jury may be possessed of the reasons that actuated him in making such statements. The rules of evidence were established for the purpose of eliciting the actual, not the apparent truth, and with the view of promoting justice. The matter now under consideration is not an exception to these rules and is elementary. 2.Elliott on Ev. (2nd Ed.) § 931. 1 Greenl. (16th Ed.) § 462. Dole v. Wooldredge, 142 Mass. 161-183, 7 N. E. 832. The matters testified to by respondent, being thus limited to an explanation of his motive in testifying differently at the former trial, it was clearly proper, and this independently of whether Mr. Blank was appellant's attorney and represented him as such on the occasion, or whether appellant was himself present at the time or not. In this regard the court seemed to demand more than the law required.

From the foregoing it is manifest that the lower court did not err in overruling appellant's objection. The judgment, therefore, should be, and accordingly is, affirmed. Appellant to pay the costs of this appeal. We concur: MCCARTY, C. J. STRAUP, J.

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Under Rev. St. 1898, §§ 3630, 3636, authorizing the granting of the writ of certiorari where an inferior tribunal exercising judicial functions has exceeded its jurisdiction, but declaring that the writ cannot be extended further than to determine whether the inferior tribunal has regularly pursued its authority, certiorari lies to review the action of the district court where it exceeds its jurisdiction, but does not lie where the court merely errs.

[Ed. Note.-For cases in point, see vol. 9. Cent. Dig. Certiorari, §§ 41, 42.] 2. SAME.

The district court, in dismissing an appeal from a justice's court on the ground that an undertaking, as required by law, had not been filed in the justice's court, does not exceed its jurisdiction, and its action is not reviewable on certiorari.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Certiorari, § 41.]

3. SAME-JUSTICES OF THE PEACE-REVIEWTRANSFER OF CASE-SUFFICIENCY-RIGHT TO ATTACK.

A party desiring to attack an appeal to the district court from a justice's court, on the ground that the papers are not filed and the advance fee paid, cannot bring certiorari until the expiration of the time specified in the statute; but a party objecting to the appeal on the ground that an undertaking required by law

had not been filed in justice's court need not wait for the expiration of such time.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Certiorari, §§ 57, 58.]

4. MANDAMUS-PROCEEDINGS OF COURTS-DISMISSAL BY DISTRICT COURT OF APPEAL FROM JUSTICE'S COURT-REVIEW.

Where the district court, without legal cause, dismisses an appeal from a justice's court, the remedy is by writ of mandate, under Rev. St. 1898, §§ 3640, 3641, denominating the writ of mandamus a writ of mandate, and authorizing the granting of the writ to any inferior tribunal to compel the performance of an act which the law specially enjoins, to require the court to vacate the order of dismissal, reinstate the appeal, and proceed to hear the cause on its merits.

5. CERTIORARI-REVIEW OF JUDICIAL ACTION. A court which misconceives the law, and acts contrary thereto in a matter where it has jurisdiction of the subject-matter, does not exceed its jurisdiction, and its action is not re

viewable on certiorari.

6. MANDAMUS-PURPOSE OF WRIT-STATUTORY

PROVISIONS.

The writ of mandate, as defined by Rev. St. 1898, §§. 3640, 3641, denominating the writ of mandamus a writ of mandate, and authorizing its issuance to any inferior tribunal to compel the performance of an act specially enjoined by law, is designed to compel action where the law enjoins it, and the tribunal refuses to act in accordance therewith.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, §§ 1-3.]

7. SAME.

Since the action of the district court in dismissing an appeal from a justice's court is final, and cannot, in consequence of the express provisions of Const. art. 8, § 9, be reviewed on appeal to the Supreme Court nor on certiorari, the remedy is by mandamus where the court erroneously dismisses the appeal, for its act is a refusal to proceed further, so that if contrary to law the court may be required to proceed in accordance therewith.

8.

CERTIORARI-REVIEW OF JUDICIAL ACTION. Where a court refuses to proceed when it has jurisdiction and authority to do so, the remedy is not by certiorari, but by writ of mandate.1

9. MANDAMUS-GROUNDS-NATURE OF ACT TO BE COMMANDED.

In proceedings for a writ of mandate, the legal right to require the tribunal to proceed and the legal duty to do so must be free from doubt, otherwise the writ must be denied. [Ed. Note.--For cases in point, see vol. 33, Cent. Dig. Mandamus, § 37.]

10. JUSTICES OF THE PEACE-APPEAL-STATUTORY RIGHT.

An appeal from a justice's court to the district court is statutory, and the statutes granting it must be substantially complied with.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, § 466.] 11. SAME-APPEAL - EXECUTION OF UNDERTAKING STATUTES

Under Rev. St. 1898, §§ 3747, 3748, providing that an appeal from a justice's court shall not be effective unless an undertaking be filed within five days after the filing of the notice of appeal, and providing that the party filing the undertaking must serve notice thereof on the adverse party, who may within two days thereafter object to the sufficiency of the sureties named in the undertaking, and unless the sureties justify before the justice, on notice to the adverse party, the appeal shall be regarded as if no undertaking had been given,

10. S. L. R. Co. v. District Court, 85 Pac. 360.

no appeal from a justice's court can be taken without the execution of an undertaking, and a failure to have the sureties justify within two days after excepting to their sufficiency nullifies the undertaking given, and leaves the case as though no undertaking had been made. 12. FORCIBLE ENTRY AND DETAINER-JUDGMENT-REVIEW-STATUTES.

Rev. St. 1898, § 3586, which provides that an appeal may be taken from a judgment in forcible entry and detainer within 10 days, which appeal shall not stay execution unless appellant files his undertaking, and on taking the appeal and filing the undertaking the proceedings shall be stayed, and section 3587, which makes the provisions of the Code relative to civil actions, appeals, etc., apply to proceedings in forcible entry and detainer, make sections 3747 and 3748, relating to appeals from justice's court, applicable to an appeal from a judgment in forcible entry and detainer, and the undertaking provided thereby must be given to perfect the appeal.

13. STATUTES-CONSTRUCTION.

Courts must give effect to all the provisions of a statute relative to one subject-matter, though found in different sections.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, § 283.]

14. JUSTICES OF THE PEACE APPEAL - DISMISSAL GROUNDS UNDERTAKING — STATUTES.

Under the statute providing that no appeal shall be effective unless an undertaking is filed, and making the failure of the sureties to justify tantamount to a failure to give an undertaking, an appeal may be dismissed, not only where there is an insufficient undertaking, but also where there is no undertaking.

[Ed. Note. For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, §§ 550, 639, 643.]

15. JUSTICES OF THE PEACE-REVIEW-FORCIBLE ENTRY AND DETAINER.

There is no distinction between an appeal from a judgment rendered by a justice's court in forcible entry and detainer and an appeal from a justice's court in other cases. 2

Certiorari by Frank Hoffman against T. D. Lewis, judge of the Third Judicial District, to review the action of the judge in respect to the dismissal of an appeal from a justice's court. Denied.

M. M. Kaighn and A. G. Sutherland, for petitioner. E. A. Walton, for respondent.

FRICK, J. The petitioner herein applied to this court for a writ of certiorari for the purpose of reviewing the action of one of the judges of the district court in respect to the dismissal of an appeal to that court from a judgment entered in the justice's court of Salt Lake City, the writ being directed to Hon. T. D. Lewis, one of the judges of the Third Judicial District of the state of Utah, and before whom the proceedings were had. For convenience the applicant for the writ will be designated petitioner, and the judge will be styled respondent.

The facts upon which the petition is based may be briefly yet comprehensively stated as follows: On the 9th day of June, 1906, one James Earl commenced an action of

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forcible detainer against the petitioner herein in the justice's court of Salt Lake City, which action, in due time, and on the 20th of said month, eventuated in a judgment for $125 and for restitution of certain premises in favor of said Earl and against the petitioner. On the 3d day of July following, the petitioner filed a notice of appeal in said court, and on the 9th day of said month he filed an undertaking on appeal. On the 11th said Earl duly filed exceptions to the sufficiency of the sureties on said undertaking, and demanded that said sureties justify, as provided by the statutes of this state. Due notice of said exceptions was duly served on the attorney for the petitioner. Up to this time the petitioner had not served any notice on said Earl or his attorney of the filing of an undertaking on appeal, but served such a notice on the 12th day of July, and after said exceptions were filed. The sureties on said undertaking failed to justify within two days after the exceptions aforesaid were filed and served, nor did they, nor any others, justify at any time. On the 14th day of July, 1906, the justice transferred a transcript of the proceedings had before him in said action duly certified to the district court of Salt Lake county, which was filed in the clerk's office on that day. On the 16th of said month, and after the transcript was filed. said Earl served a notice and motion on the attorney for petitioner, notifying him that on the 21st day of said month said Earl would make a motion to dismiss said appeal before respondent herein as one of the judges of said district court upon substantially the following grounds, viz.: That said district court has no jurisdiction to try said cause on the merits, or to do other than to dismiss the appeal, and that the sureties on the undertaking on appeal had not justified as required by law, although exceptions to their sufficiency had been duly made. The attorney for the petitioner attacked the foregoing motion to dismiss by a counter motion "to dismiss the motion and notice," made by said Earl upon the ground that the court had no jurisdiction to entertain such motion to dismiss said appeal, and that there was no action pending in said district court between the parties, to wit, said Earl and said petitioner, and further, that the notice accompanying said motion to dismiss was insufficient. To this motion was attached the affidavit of the petitioner, setting forth, in substance, the proceedings had in the justice's court, as hereinbefore stated. On the 21st day of July, 1906, and on the day set in said motion to dismiss, the respondent, sitting as judge in one of the departments of said district court, after a hearing upon the motion aforesaid, sustained the motion to dismiss said appeal, and accordingly entered an order dismissing the same.

We remark here that it will be observed that the case originated in the justice's court,

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