without apparent cause, rejected it and sold it to another person. Held, 1. That plaintiff's were at least entitled, upon this evidence, to recover the actual cost of advertising, and compensation at the rate of $25 per annnum, 2. That where a broker, employed to sell property at a price satisfactory to the principal, produces a party ready to make the purchase at a satisfactory price, or to make an exchange satisfactory to the principal, the latter can not relieve himself from liability to the broker for a commission by a capricious refusal to consummate the sale; and upon the evidence in this case it should have been submitted to the jury to determine whether plaintiffs were not entitled to their full commission as for a sale. 3. That there was no such variance between allegations and proofs as to justify a nonsuit; the evidence not having been objected to on that ground, and defendants not appearing to have been misled to their injury, Opinion by COLE, J.

[RYAN, C. J., in a separate opinion, discusses the effect, in various circumstances, of proof of a specific contract for services under a declaration for quantum valebat.-Deloplaine v. Turnley.

RAILROAD NEGLIGENCE- CONTRIBUTORY NEGLIGENCE.-1. A railroad company is under obligation to its employees to exercise reasonable diligence in inspecting and repairing its cars; and is liable for injury to an employee caused by a defect in one of its cars, which the company, in the exercise of ordinary care, would have discovered and remedied. 2. The question of defendant's negligence was properly submitted to the jury upon evidence that a bolt in the break beam of one of its cars projected unnecessarily for a considerable distance, so as to be in the way of a brakeman coupling such car to another, and that the injury complained of, received by plaintiff while coupliug for defendant, was caused by such projection. 3. Such projection, if a defect, being an obvious one, which defendant was bound to remedy, there was no error in refusing to charge the jury that if the car became thus defective after it was first put in use by defendant (several years before the accident) the latter was not liable unless it had notice of the defect. Smith v. The C., M. & St. P. Railway Co., 42 Wis. 520, distinguished. 4. After charging that any contributory negligence of plaintiff at the time of the accident would prevent a recovery, the court did not err in refusing to charge that if plaintiff had as good opportunity or means of knowing the defect as defendant had, but overlooked it, this was negligence which would prevent a recovery. And especially was this not error, where there was no evidence that plaintiff was familiar with the car, or had ever before coupled it. 5. In the absence of proof that plaintiff was in charge of the car at the time of the injury, except so far as is implied in his service as brakeman, or had any duty of inspecting it, there was no error in refusing to charge that it was his duty to observe any defect in it, and to avoid it, if dangerous, and that his failure to do so would prevent a recovery. Opinion by COLE, J.-Wedgwood v. C. & N. W. R. R.

CONTRACT-PRICE AGREED-NOTICE.-1. It is the settled practice of this court not to disturb findings of the circuit court upon questions of fact, except upon a clear preponderance of evidence against them. 2. It is not necessary to the validity of a contract of sale, that it should determine the price in the first instance; but it may appoint a way by which it shall be thereafter determined, and in that case the contract will be perfected when the price has been so determined. 3. Where, therefore, a contract for a sale of a village lot provided that the price should be the same as the price of sale of the first lot which should be sold in the vicinity, and lots adjoining the one in question were sold before the action was commenced: Held,

that the contract was thus rendered certain. 4. Where, by the contract of sale, land was to be paid for in part by labor and services, and upon the vendee's demand for an adjustment of the amounts paid and unpaid, and conveyance, the vendor repudiated the contract and ordered him to quit the possession, this was a waiver of any further tender or demand, before suit by the vendee for specific performance. 5. Actual, open and notorious possession of land is constructive notice of the possessor's rights. Wickes v. Lake, 25 Wis., 71; and where C. was in possession of land under a parol contract of sale, and M. took from C.'s vendor a mortgage of the land, with knowledge of C.'s possession, but in ignorance of his rights as purchaser, the mortgage was void as against C. 6. Where the vendor and his mortgagee resisted C.'s action for a specific performance, joining in an answer denying his rights, it was not an abuse of discretion for the court to award costs against them jointly, and to set off the costs against the unpaid balance of the purchase-money. [RYAN, C. J., dissents as to this point.] Opinion by ORTON, J.-Cuningham v. Brown.


THE AMERICAN DECISIONS. Containing all the cases of general value and authority decided in the courts of the several states from the earliest issue of the state reports to the year 1869. Compiled and annotated by JOHN PROFFATT, L.L. B. Vol. III. San Francisco: A. L. Bancroft & Co. 1878.

The third volume of this valuable series contains the leading cases from sixteen volumes of reports, covering a period of five years, from 1804 to 1809. The reports are 2, 3 and 4 Mass.; 3 Day (Conn.); 1, 2 and 3 Johnson (N. Y.); 2 Harris & Johnson (Md.); 6 Call (Va.); 1, 2 and 3 Hening & Munford (Va.); 1 Murphey (N. C.); 2 Brevard (S. C.); 1 Hardin (Ky.) and 1 Overton. (Tenn.) The volume contains 770 pages, exclusive of the index and table of cases.

Among the many cases of interest reported in this volume we have only space to refer to the following: In Com. v. Judd, 2 Mass. 329 (1806), Chief Justice PARSONS held that a conspiracy to manufacture base and spurious indigo, with a fraudulent intent to sell the articles as good and genuine, was an indictable offense, although no sale was made in pursuance of the conspiracy. A contract to reprint a literary work, in violation of a right of copyright secured to a third person, was held void in Nichols v. Ruggles, 3 Day, 145 (1808), and the printer who had executed the contract, having notice of the rights of the third person, was not permitted to recover for his services. The case of Jackson v. Kniffen, 2 Johns. 31 (1807), is a leading case in the law of wills. It was there held that parol evidence of a testator's declarations made subsequent to the execu tion of the will, and shortly before his death, are not admissible to show that he executed the will through fear and duress. The editor's note to this case contains an exhaustive review of the question examined in the principal case. The question is considered by him under five heads. 1. To show a revocation. 2. Where fraud, mistake or imposition is alleged. 3. In cases of insanity, or undue influence. 4. As to the existence and contents of a lost will. 5. In explanation of provisions. The question considered under the fourth head having a bearing on a point lately discussed in these columns (see 7 Cent. L. J. 19, 59), we take the liberty of copying a portion of the editor's note. "In Jackson v. Betts, 6 Cow. 376, evidence of the declarations of a testator showing the existence of his will was offered, and that the deceased repeatedly declared during his last ill

ness, and in articulo mortis to the executor, that he had left his will and codicil in his desk, and stated where the key was left. This evidence was objected to, and rejected at the trial. As to this the court say: • The declarations of the testator during his last sickness, as to the existence of his will and the place where it would be found, were incompetent evidence, and were properly rejected.' This case afterwards went to the Court of Errors (6 Wend. 173), and on this point Chancellor Walworth doubted the correctness of the ruling. He says: "The supreme court, on a former occasion, decided that the circuit judge had correctly rejected evidence of the declaration of the testator, in his last sickness, recognizing the then existence of the will, and directing as to the place where it might be found. As that question could not be raised or argued in this cause, I have not examined the subject sufficiently to have made up a definite opinion thereon; and probably I ought not now to express such opinion, even if I had no doubts on the subject. I will, therefore, only say that, in the investigations of the other questions in this rause, I have necessarily been compelled to look into this subject so far as to see there is sufficient doubt as to the correctness of the decision of our supreme court on that point to authorize them to direct an re-argument of the question, if it shall again come before them.' The authority of Jackson v. Betts, on this point, may therefore be very well doubted. In Haney v. Allen, 25 Mich. 505, the evidence was received. But this whole question has lately undergone an elaborate examination in England, in the now celebrated case of Sugden v. Lord St. Leonards, 1P. D. 154, 17 Eng. R. 453." In Hallett v. Wylie, 3 Johns. 44 (1808), where it was held that, in an action for rent due on a lease, the destruction of the demised premises by fire did not excuse the payment of the rent, according to the covenant, VAN NESS, J., says: "This is a hard case upon the defendant, and if the court could consistently with settled and established principles, release him from the payment of the rent in question, we should most willingly do it. But it can not be done without overturning a series of decisions to which this court is bound to conform. We sit here jus dare, not jus facere." In Sears v. Brink, 3 Johns. 210 (1808), the decision in Wain v. Warlters, 5 East. 10, that under the statute of frauds the consideration as well as the promise must be in writing, is followed. The editor's note states that this ruling has been repudiated in Maine, Vermont, Connecticut, Massachusetts, North Carolina, Ohio and Missouri, but has been followed in New Hampshire, New York, New Jersey, Maryland, South Carolina, Georgia, Indiana, Michigan and Wisconsin. In Smith v. Lewis, 3 Johns. 157 (1808), it was decided that an action will not lie against a person for suborning a witness to swear falsely in a cause in another state, in consequence of which a judgment was given against the defendant in the latter state, contrary to the truth and justice of the case.

The third volume is fully up to the standard of the previous volumes. The notes are well written and show a fair amount of research. The cases are, as a rule, well selected, though we are inclined to think that Mr. Proffatt has given a rather undue prominence and importance to the subject of Marine Insurance.

REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF MISSOURI. By THOMAS K. SKINKER, State Reporter. Vol. 65. Kansas City: Ramsey, Millett & Hudson. 1878. With this volume a new departure in the publication of our state reports has been taken. Hitherto it has been our distinction to possess, in our own reports-to some extent in their arrangement, but to a far greater extent in their typography and general appearance—

the worst set of state reports extant, inferior even to those of Colorado and the Territory of Utah. The bandsome volume which is before us changes all this, thanks to the care and ability of the reporter, and the enterprise of the publishers.

We have examined this volume with considerable care, and can find little to criticise. The head-notes are clear and thorough, and the statements of facts, whenever necessary, concise and to the point. Mr. Skinker has succeeded in so dealing with the arguments of counsel in each case as to give them their proper share of space and no more. He has not printed entire briefs, nor has he collected the authorities cited, and thrown them together in an undistinguishable jumble. He has taken a middle course-one which we suggested some weeks ago in a review of the reports of the St. Louis Court of Appeals, and which we believe will be satisfactory, both to the counsel involved and the profession at large. In this respect his style is a decided advance over that of his predecessor. In the matter of the titles of cases an improvement might be made by dropping the christian names of the parties, which are generally useless, and in omitting the addition et al., which is always unnecessary. Though this can hardly be said to be of very great importance, still we believe it is being adopted by the best of our present reporters. Any other rule will frequently produce as cumbrous a title as Martha A. Sitton and her Husband v. Shipp, which we observe on pp. 297 to 306, and which as Sitton v. Shipp would certainly be handier and less difficult to remember. If our objections on this point seem venial, it is because we have not been able to discover anything weightier to find fault with. That the judgment of the profession will be that the work of reporting the Missouri decisions could not have been left in better hands, we are assured.

The sixty-fifth volume contains 770 pages and about 140 cases, The opinions are, as a rule, not lengthy, the longest being that of Rankin v. Patton on p. 378, which extends over thirty-eight pages. Many of the cases are important, but as a majority of them have already appeared in these columns either in full or condensed, it is not necessary to notice them in detail. The paper, presswork and binding are good. There is, however, an annoying mistake in the index, the responsibility for which must rest with the printer.



50. MORTGAGE-FORECLOSURE.-Under the statutes of Michigan, no covenant will be implied in a mortgage of real estate. The Michigan Supreme Court have repeatedly decided that a mortgage of real estate is not a conveyance of title defeasible upon condition subsequent and to become absolute on failure to pay at a specified day, as it was originally at common law; that it is but a lien upon the land as security for the debt. The statutes also provide that ejectment will not lie before foreclosure and sale. It has also been held by the supreme court that a receiver to take rents can not be appointed pending foreclosure. Now, suppose A gives a mortgage to B for a certain sum of money, accompanied by a collateral bond, the mortgage being in the form of a grant defeasible upon payment at a day specified of the sum of money, but not containing any covenants of title or of warranty, such being the usual form of mortgages in this state. A suit in chancery to foreclose is commenced, and it turns out at the hearing that the mortgagor had no title at the time of the execution of the mortgage, but has since

acquired a perfect title-acquired the same before commencement of foreclosure suit. Should the court render a decree of foreclosure against the mortgagor?


51. JURISDICTION OF JUSTICE OF THE PEACE MEANING OF "ADJOINING" TOWNSHIP. In the second volume of Wag. Stats., p. 810, sec. 8, prescribing where suits before justices of the peace shall be brought, the first sub-division of the section says: "Wherein the defendants, or one of them, resides, or in any adjoining township." The question often arises: Is the township which corners on the one in which defendant resides a township adjoining the one in which he resides?


[The third sub-section of the New York statute, as to jurisdiction of justices of the peace (3 R. S. 427, § 6), provided that suit might be brought "before some justice of another town in the same county next adjoining the residence of the plaintiff or defendant." In Holmes v. Carley, 31 N. Y. 289, a similar question to that asked by our correspondent arose. The conclusion of the court is found in the opinion of POTTER J.: "Within the spirit and intent of the statute in question is the town of Virgil, in which the justice resides, 'next adjoining' the town of Marathon, the residence of the parties. These two towns are 'next adjoining' in no other sense than that of touching at the corners

* According to the ordinary understanding of men and physically and materially these towns, by touching and coming in contact with each other, are next and adjoining each other, and come within the meaning and intent of the statute."-ED. CENT. L. J.]

No. 47.

[7 Cent. L. J. 99.]

Catholic churches in this country are not corporations. The title to their property is vested in the reigning bishop of the diocese individually, as “N. H. E.” will find by examining the records. The church and school-house stand on the land of the bishop. The priest is the agent of the bishop and borrowed the money as such agent and for the use of his principal. An action will lie against the bishop in his individual name for the money borrowed, but the action must be brought at his place of domicil. A transcript of the judgment may be taken to the county where the church property is situate, and thereby a lien upon it effected; or an execution may issue to the sheriff of that county directly. If the bishop is a non-resident of the state, an attachment will lie against the church property. The priest, however, may also be personally liable. This depends on the tenor and legal effect of the note. Taft v. Brewster, 9 Johnson, 334; McLure v. Bennett, 1 Blackf. 188; Mears v. Graham, 8 Blackf. 144; Prather v. Ross, 17 Ind. 495; Herrod v. Rodman, 16 Ind, 241. The last case refers to numerous authorities. Ordinarily, however, catholic priests do not own property subject to execution, so that the action against the bishop, not as bishop, but in his secular name and capacity, is most advisable.



A WELL-KNOWN LAWYER of this city writes to the editor of this journal upon the subject of professional titles, as follows: "I trust you will allow me to express my pleasure at the proper and professional way in which you refer to the counsel engaged in suits re

ported in your columns. In United States v. Whittier (7 Cent. L. J. 52), for instance, you say 'Mr. Bliss and Mr. Ellis for the United States, and Mr. Dyer and Mr. Wagner for the defendant.' A modern newspaper reporter, and not a few law journals, would have had it Hon. Wm, H. Bliss and Maj. Ellis for the United States, and Col. Dyer and Judge Wagner' for the defendant. It is a little matter, but all questions of taste are more or less important. During the whisky trials' in this city, two years ago, the titles given to counsel were most confusing, and to an English barrister who happened to read the daily reports of the proceedings, such a stumbling-block as to oblige him to lay the matter aside entirely. He could understand how there happened to be two judges on the bench, but he could not see what reason there was for three 'judges,' two 'generals' and a 'colonel' among the counsel. To a first-class lawyer there is glory enough in his profession, and he can afford to abandon titles obtained by a fitful experience as police justice, or on the county or even the circuit, bench. Many lawyers who have the right to these titles by the courtesy' decry them, and attribute their continued use to the reporters and their friends. If this is the only cause for their retention, a few suggestions from the owner of the name with which the liberty is being taken would correct the abuse."

CHANCELLOR W. F. COOPER, of Nashville, has been elected a Justice of the Supreme Court of Tennessee, -Parsons' Law of Contracts has received the distinction of being translated into Chinese. The translation has been made by Yung Wing, the Chinese Com. missioner of Education in this country.-The old court house of Plymouth, N. H., in which Daniel Webster made his first plea, has been restored and presented to the Young Ladies Library Association of Plymouth by the Hon. H. W. Blair of that town.There is some complaint being made against Mr. Sick. les, the reporter of the New York Court of Appeals, for having in his last volume substituted the title "anonymous" for the names of the parties in a notorious case. However he will not find it hard to cite precedents in the reports of his state. In Cowen's reports there are thirteen; in Hill's twelve; and in Duer's five cases reported as "anonymous." The same may be said of other reporters, such as Caines, Johnson, Wendell, Paige, Sandford, Robertson, Daly, Hopkins, Barbour, Abbott and Howard.A portion of the inhabitants of Washington Territory demand the removal of Judge Peck from the bench of that Territory. They say he is an obstinate temperance man, and a scoffer at the manners and breeding of the people. He turns up his judicial nose when he is asked to join in a "smile," and will not eat at the same table with his fellow-citizens, because of their peculiar social ways. He also goes so far as to correct their pronunciation. In proof of this charge, his accusers cite the case of a man who appeared before the judge and gave his name as "Shidrick." "That's not your name," shouted the judge. "But it is," persisted the man. "I ought to know." "I tell you it is not," roared the judge. "Yours is a Biblical name. It is Shadrack. S-h-a-d-r-a-c-k. I guess I know something about the Bible." This seems to have been the last straw, and Wyoming rose in rebellion. The judge was citing an authority outside his jurisdiction, and one heretofore unknown in Wyoming. At the recent trial of the participants in the Albion insurance frauds in England, the indictment, which consisted of nearly one hundred counts, covered twenty-five yards of parcnment. A copy of it cost £10 to make, and the document was so cumbrous that, at the request of Mr. Justice Hawkins, an abstract was prepared "for the practical purpose of the investigation," on which counsel worked and the case was decided.

The Central Law Journal. with, Mr. Sheffield [the plaintiff's vendor], as



In Luten v. McRae, 10 Ch. L. N. 382, it was held by the Supreme Court of Tennessee, that the correction by a register of a mistake in recording a mortgage, could not operate to overreach a levy made before the correction. "The object of the registration laws," said SNEED, J.," was to advise the public accurately and specifically of all transmutations of title to property, and if the registration contains a false recital, it is the misfortune of the vendor or alienor, only remediable by action against the register himself, if the instrument be one which may lawfully be recorded. In this case the registration was a nullity, as a notice, or otherwise, to the plaintiff, and whatever might be the effect of the register's correction, if made prior to the levy, it was certainly ineffectual to disturb the title in this case as acquired by the levy."

A case of some novelty, involving the question as to the right of property in ice in a nonnavigable stream, has been recently passed upon by the Supreme Court of New York in Myer v. Whitaker, 18 Alb. L. J. 128. The plaintiff's vendor, who had built a dam on a stream on his own land, obtained from the owner of the land above him the right to overflow his land without any limitation as to the use of the waters held back by the dam. In an action brought by the plaintiff, it was held that he was entitled to the ice formed in the water overflowing the lands of the owner above him, and could recover the value of the ice which had been taken therefrom by a third person by permission of such owner. ""The manner of its [the water] use," said WESTBROOK, J., "and the mode of its application to his own use was not restricted by any deed, conveyance or title which he held, nor by any rule of law except the general one, that the flow of a natural stream shall not be so obstructed as to deprive owners below of the beneficial use and enjoyment of the stream and its flow. So long as such owners below were not interfered Vol. 7-No. 8.

the former and owner of the basin which held the water, had the right to use such water for his own profit; he could use its momentum to propel machinery and let that right to others; he could use the water for domestic and farming purposes, and could let and rent that right to others. All these consequences follow, it seems to me, from his act of appropriation and gathering them. The land basin or vessel which held them was his, as owner in fee or as owner for use. By his dam he had filled that basin or vessel, and the water thus gathered or held therein was his, subject only to the exception that the beneficial enjoyment of owners below should not be interfered with, just as much as if he had gathered them for his own use and benefit into a tank or cistern which had been constructed for that purpose. The right to use and to sell the water in its liquid form is only a part of his right. When the form of the water changed by cold into ice, Mr. Sheffield had, it seems to me, the right to use it in its congealed form, and the same right to sell it and permit it to be gathered before it returned to its liquid state, as he had to use and dispose of when in the latter condition. There can be no difference as to his rights growing out of the state of the water." This decision is in conflict with that of Emott, J., in Marshall v. Peters, 12 How, Pr. 218, where it was held that the party purchasing ice from the owner of a pond could not obtain an injunction against a trespasser who undertook to remove it. In that case it was said: "The water in a running stream can never become, in any such sense as was claimed on the argument, the property of a riparian proprietor, even if he owns both banks, and the stream passes through his lands. All the property that a man can acquire in flowing water is a right to its use. He may have a certain right of property in it, but the water itself is not property. He has a right to its natural flow and to use it for his cattle, or his houshold, or upon his mill-wheels. But he can not stop its current, nor direct its flow, nor increase or diminish it in any appreciable quantity. He must allow the waters to pass out of his hands as they enter them, and his only right is a right to use them as they flow." In Mill River Woolen Man. Co. v. Smith, 34 Conn. 462, it was held that "owners of the waters of a mill pond own the ice

formed upon it, and the riparian proprietors had no right as owners of the soil to remove it;" and in State v. Pottmeyer, 33 Ind., the Supreme Court of Indiana held that when the "water of a flowing stream, running in its natural channel, is congealed, the ice attached to the soil constitutes a part of the land and belongs to the owner of the bed of the stream, and has the right to prevent its removal." Elliott v. Fitchburg R. R. Co., 10 Cush. 191; Brown v. Brown, 30 N. Y. 519.

IN Richmond & Petersburg R. R. v. Kasey, recently decided by the Supreme Court of Appeals of Virginia, a bond with sureties was given to the plaintiff company by a freight agent for the faithful discharge of his duties. The principal having made default, the sureties sought to escape liability on the ground that when they executed the bond, there was a rule of the company prohibiting credit to be given for freights, which rule was afterwards changed, and their principal was thereby allowed to give such credits, and also that though default had occurred, the company did not notify the sureties thereof, and retained the agent in office. The court held that these facts did not discharge the sureties. In People v. Jansen, 1 Johns. 331, decided in 1811, in an action brought against a surety on a bond given for the faithful discharge of the duty of a loan office under the act therein mentioned, it was held that the surety might set up in his defense the laches of the supervisors in not discharging and prosecuting the loan officer for his first default, but suffering him to continue, after repeated defaults, for upwards of ten years, when the loan officer became insolvent; and without prosecuting the officer as required by the act, and where no notice was taken of the defaults of the principal until after the death of the surety, this laches of the supervisors was held to be a good defense, especially in a suit against the heirs of the surety. But this ruling has been disapproved in a number of more recent cases. United States v. Kirkpatrick, 9 Wheat 720; People v. Russell, 4 Wend. 570; Dutch Church v. Vedder, 14 Wend. 165; Supervisors v. Otis, 62 N. Y. 88. In Dutch Church v. Vedder, supra, it was held that "the sureties had no reason to place any reliance upon the by-law requiring the treasurer to account every six months; that was a

mere private regulation, which did not form any part of the contract with the sureties.' In Supervisors v. Otis, supra, it was unanimously held, by the Court of Appeals of New York, that "the sureties upon the official bond of the county treasurer are not discharged from their obligation by any neglect, omission of duty, unfaithfulness, or malfeasance on the part of the board of supervisors in their dealings with the principal in the bond. The board of supervisors and county treasurer are alike agents of the county, and the acts or neglects of one agent can not affect the liability of another, or of his sureties to the common principal." In Railway Co. v. Shaeffer. 59 Penn. St. 360, the rules of a railway company required from the cashier monthly reports and payments. The bond of the cashier and his sureties was conditioned that he should faithfully discharge his duties as required by the rules, a copy of which he acknowledged to have received; the cashier neglected to account and pay over for six months, when he was dismissed, and the sureties were not notified of his default for three months afterwards. It was held that they were not discharged. The unanimous opinion of the court was delivered by Sharswood, J., who, after making a quotation from the opinion of Story, J., in United States v. Kirkpatrick, said:

"The reason so clearly stated by Story, J., in regard to officers of government, apply with equal force to officers of corporations. Corporations can act only by officers and agents. They do not guarantee to sureties of one officer the fidelity of the others. The rules and regulations which they may establish in regard to periodical returns and payments are for their own security, and not for the benefit of the sureties. The sureties, by executing the bond, became responsible for the fidelity of their principal. It is no collateral engagement into which they enter, dependent on some contingency or condition different from the engagement of their principal. They become joint obligors with him in the same bond, and with the same condition underwritten. The fact that there were other unfaithful officers and agents of the corporation who knew and connived at his fidelity, ought not, in reason, and does not in law or equity, relieve them from their responsibility for him. They undertake that he shall be honest, though all around him are rogues.

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