Gorges Edmond Howard.

A treatise of the Exchequer and revenue of Ireland, Volume 2 online

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third're- rcftored, whcrcby the adventurers and foldiers were re-
duced to a neceility of claiming reprifals, that the (lock
of reprifals fell (hort, and therefore the foldicr and adven-
turer were by the ad of explanation retrenched <me third
of what was their real duc«


9oid«r and ^"* ^* *^ *^^ pcrfcd Tnodc! of that a£l of parliament,
adventurer that the foldicr and adventurer was not to be removed
moved cut 0} o^t ^^ what he was in pofTeilion of, for any reflitution,
\^hathe wiis till he was duly pofleffed of his two thirds; this is pro-
of until pof- vided both at the beginning and ending of the a^ of
feflcdofhis explanation; after this retrenchment there feems to be

twu thirds. ' ' .1. /• rt-^r

room made for every body, m purfuance of the aa of ex-
planation ; for by this a(5l, if an innocent claimed more
than was his due, the adventurer or foldier in poffcflion
h.H(l it in his ele^ftion cither to give it up to the claimant,


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and have recourfa to the dock of reprifalsi or choofe it as
loty and try it with the claimant, who was to fet up no
title but what he had put into his claim.

Two years was thought a competent time in which Twojrears,
all thcfe matters ought to be fettled 5 and therefora-a claufe Siinnu^"^'
was added to the adl of parliament, that in cafes which matters, and
fhould happen before the commiflionersi which were what^^rff
doubtful, and the aft found defedive, in points neceffary *" ^^"^^
for carrying on the intended final fettlement, that the pilinedand
commiflioners or any three of them might acquaint the ^*"^^-
Lord rLieutei^ant or chief governoi: or council, with their
proceedings and doubts> and fuch prder for amendmentf
enlargement of period, explanation and direftion as
ihould therein be made by the Lord Lieutenant and
general governors and council (hould be as efFedual, as if
the fame had been inferted in the aft.

This is the top-fione and finiOiing of this building, for The power
it was apprehended by the legiflature that fome .time i^nf^/witb
fbould be given before every man's right fhould be fettled and the expU-^
and adjufted ; and the Lord Lieutenant and council were l^oubu.^^
armed with a power to fix every man in his proper fet- j
tlementy £0 that there never after be. any controverfy or I
contention about it 4 and this they have done by their*
anfwer of refolution of doubts, where they have ordered, j The explana-
that where any certificates of letters patents (ball have * ^o" ^^ «*»c

' words

been paiTed to perfons entitled, they (hall hold and enjoy 1 < where certi-
the land againft the King, bodies politick, and all perfons ] ^^^« ^*"
whatfoever, unlefs thofe titles are faved in fuch certi-| < perfons
jficate. ^•^"'^^-

ons in*

Now the perfons entitled muft be underftood the foldiers wiio under-
and adventurers, who by the aft were entitled to receive ^^ ^y ^^«
VouIL T certmcateSf titled

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certificates, for otherwife the confifmattott would bfc
utterly irifignificant, for 'tlic -conftruaion that is Hmde by
thofe who argue fbr ^hc defendants, h oaly that i( ft
certificate be granted to thofe that have right to them,
they fhall have tight; i?^hfereas, the meaning of ^the a£l
was, to make the certificatcfinal to the parties, that ifter
they had been retrenched they might never after ^bedif-
turbed in that part which they cnjoved, btit^flwmW the con-
jftru<aion be, that they were in alPpoints to be entitled
to the certificate, or elfe they were to be open to all other
title, then it would amount to no confirmation at all,
and this rule made for the final iettkment of all adven^
turers and foldiers and their focurity would cotae t6

Thcciaufcof Secondly, 'We come now to the prorlfion Ifor tht
Piovi^onfor coUcge, which in the ad of cxpkmatioh'ftands*thus }

Sea los. Provided always, and h is hereby enabled and explained,

that no lands whereby the provoft, ^fellows and fciiolars
of the holy and undivided Trinity of Queen Elizabeth
near Dublin were &f2^ in fee in the year 1641, and are
now in their a^ual pofifeflion, nor any lands held by
virtue of any grant, leafe or fee farm, frtfm the faid
provoft, fellows and fcholars, and forfeited to his Majefty,
ihall be difpofed by virtue of this or the faid former aS,
but that they and every of thefti remain, and be in the
provoft, fellows and fcholars, and their fucceflbrs for ever,
fubjccl neverthclefs to the payment of fuch quit rents for
the faid forfeited lands, tts adventurers or foldiers by virtue
of this or the former ad, ought to pay, any thing in this
or the faid former ad continued to the contrary notwith-


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A P P E N^ D I X*


Tbb olaiB^? ifl not only a^ olaufc of reftitutron, but Mr. vr
likowife of augiraeotalwo of covenuO' to the college ; and ^"^Jj^I^^T^
the roaibn of aogmcntatiDQ at this time was^ that the oni^ of reftu
refloc^on bad in ito oonfequencaa leflened their income j iumenu- ^
foifdwiag tbe uTncped power the coUegc hadfi^eral lands tbo.
given tlkuhy whkh belonged to tbe archbishop of Diiblin,^
tfae dMn and chapter of St. Patrick's and bifhop of Meath^
which by the ad of fettleoient were all refiored to thetD^
again, and therefore the lands held of them in fee farm
and forfeited ta the King^ were granted to them in com-
peofKiof^ but whatever was. tbe m^vmg^ or procuring
caiiire of thiiB grant, yet it was ikiVk a^ new graijit, and aa
fnck it was to be expounded; fo that as to tbe lands«
which wdre held of them in fee^Mn ai^ forfeited to the
GrowDi thefe were aa augmentation and gift from the
King, and the ceUege* waa to begin a title^ fromi hini, acid
therefore they were to be pafled to tbe colleges by certifi*
cate aad patent, and they are not* immediately veiled in
the college by the a£t till they are claimed, qor can they, Tbe college
as it has been argued for the defendants, be immediately "J^ciwa-
executed by the a(St in the college;^ as. the llatute which
transfers uCts into pofleflionv and that for naany reafoos^

Pird, Becaufe there i$ no de&ription of the land b^ iieafoni.
quantities and other convenient certamties> and therefore
not being certain in theAifelves, muft be reduced to cer*
tainty by fomebody elfe, for it can never be fuppofod tbe
fiatute intended to execute the lands, witfiout fettii^ out
defcnbingtbe particulars of the lands that were ib to be
granted and conveyed^

Secondly, That which pttts this matter out of doubt
k the claulb wbicb obligea the college to pafs a certificate

T z and

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No.J^i- ^ and patent J the words are, "That the commiffioners
^^ ihail appoint books to be made of the allotments of ad-
" venturers and foldiers, the augmentation of bifhops, and
•* provifion for the college of Dublin 5 and on certificate
^* under the hands and feal of the commiffioners, expref*
" fing the names of the perfons, with convenient defcrip-
^^ tions, denominations9 and number of acres, that then
^ the Lord Lieutenant fhall grant a patent without any
** letter or warrant from the King.*'

By whi6h claufe it is plain, that the provifion8> riz. all
the prbvifions of the college, muft be pafled to them by
certificate and patent, as welT as the feverai lots of the
adventurers and foldiers. And there was the fame reafon
it fhould be fo, becaufe they were to begin a title, and
the right was to pafs out of the Crown to themfelves ;
and if the commiflioners were to grant a certificate, there
mull h6 a claim before fuch commiffioners, for they could
not certify a right till they had notice they had fuch a
right in them.

Thirdly, There is another claufe in the ftatute that
fhews there was a ncceflity that they fhould claim ; and
this is a claufe that ftands fubfequent to the college claufe;
yiz. ''Provided neverthelefs that no reprifal foldier, ad-
** venturer, or ofiiccr, before the 5th of June, 1659, or
''^ protcflant purchafer in Conaught and Clare, be removed
** out of any part of the premiffes,. which they are to have
" by this a^, before they be reprifed for the fame,
*' according to the faid flatute.'' And, indeed, it is the
whole plan of the ad of explanation, that the reprifable
perfon was to be adually reprifed before he was to be
removed to make room .for any perfon that was to be
rcflored. So that this perfon being ^a poffe^on of the


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hnds belonging; to the college, ^as not to give up any , ^^I*
till fuch time as he was reflored to other lands ; and
therefore the college muft needs claim before the com-
miflionersj othervifife^ it was^only keeping during the
time they worjc to claim, and then they would ouft the
perfon in poileflion without any claim at all» which is.
contrary to the whole defign and tenor of the a6l of

Fourthly, This was the cotemporary expofition of the
zQ, of parliament, becaufe they did actually claim in pur-
fuance of the ad, and thofe claims have, been read to the,
court ; and thefe cannot be faid to be ex abundanU cautela^
fince the words of the law require that a certificate and
patent fhould be pafi!ed of them. .

But thofe who have argued for the defendants have
very much relyed that fince. the words of the ad are,
•« That no lands held by virtueof any grant, fee farm, or
«* leafe, from the college, and forfeited to his Majefty,.
<* fliall be difpofed of by virtue of thefe ads, but fhould
<* be and remain to them for ever, any thing in this ad.
•* to the contrary notwithftanding," that therefore every
difpofition of thofe college lands by the commiflToners is
abfolutely void $ that the commifiloners had no power to
difpofe; that what they did was coram nofTjudice -^ 2Lnd^
that this claufe is to.be confirued as the non objlante ia
patents, and aaan exemption ^ and that the lands contained .
in this claufe are out o£the power of the. commifiloners^

It is very true,, that if the commifiloners had no power
over thofe lands by virtue of this claufe, and that their
difpofition was^void, then no confirmation can operate to
make avoid claufe good} nor would the plaintifi" have


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A P ^ B N I> I 3£

^^Yl' . • been within the Vcfolutipn of doubts, ifwbat the commif-
(ibners had dooe was coram non judice.

onett bad
power over
the lands
granted to
the college.

But the COTan>iffit)ner8 have power x)vcr the lands
granted to the college ^ and this appears plainly from what
l^s been f^id: already.

Firft, Bccaufe the commiffioners had a power to decline,
whether the lands had been forfeited or not; for they
were to declare whether the perfons that held of the college
were innocent or not 5, and if thi? claufe was to be con-
fhued as an exception oqt of their power, then they
could mafep no declaration of the nocency or innocency
of the perfons holding the hnds, aqd confequently the
college could have no title ; for they derive title by the
attainder ojr ojutlawry of Fitzgerald for high trcafpn ; for
they have fet out the inq^Uifitioo, though they, fay he is
guilty per inquifttionem\ and the tiljq thpy fetup in the
record is. by the declatatlor^ of nocency by the commif-
fiiopers, fet fdrth ift the plaintiff's title. So that if the de- '
c)aration of the commiffioners be void, the college can
have no title ; which concludes plainly, thefe lands are
not out of the verge or power of the commiflloners.

Secondly, If this was an exemption of the fands out of
the power of the conjmiflSoners, they would have no
authority to rcprife fuch adventurers and foMters as were
turned out by^ virtue of this claufe $ and by the claufe 8S4
fuch adventurer and foldier was not to be removed till he
was reprifed : So thai to make fuoh conftruiSion on this
claufe, as if it extendpd to exempt the lands, would be to
confirue it in a manner that would npiake it inconfiflent
with that part of the ad.

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A P ^ « N «) I X. ,143

If than the colJegc ought ta claiaii.then by the ckufe J£:^i.
5*4-?* 543i t^^y »f^ debarred by their owa non-daim ; tMem
«3d if the c(frtificate was not void, but only voidable by *^J^
the claufe <2if the college, then by the claufe 540, but
'Rlore efp9pi«liy by the ^d of reiblution of doubts^ fuch
certificate k eoafioned agaioft all p^rfons and bodies

Thirdly, There ia no doubt but the refolution of Certificates
-doubts confirm* 4he^ certificate againft the claim of any JJjJ^jfe
ioaocent perioa. that is iU)t expre&ly mentioned within citimofin-
the certifioatesj and the claufe for thei innocents is much fo^?^^^^
Aroiiger peno^ than that fi>r the college; the words are, refolution or
" That this ad or any thing therein contained ihall not ^^^^
^^^vrft or be underftood or conftrued to veft in their Ma-r
^^ jeAies,: their "heirt a|id fuccefibrs, or other wife to pre-
^^ijudigee ortate awsty &ny efiate from any innocent papifis, .
^^ their innoccat hoirs, ^Eequtprs,- or adminiAfators*'' And
yet the confirming claufe fet up the certificate againft
their title, if they be not exprefsly mentioned in fuch .

New the words of the innocent claufe, ^' that they inisocents ^
*''ihill tiot veft,*' we much ftroager than the. words in the danfct daufe
toHcge ehmfe, ^* that they (hall not be difpofed of/'
The inoocetits b >a elaufe of reftitution to the land, tor
i^hioh the i^ing ^ad iiq title by fcH'feitures the college
«l&ufe is. a neWr^mik of lands under a forfeiture^ and :
therefore, by the reiblution of doubts, the perfon that
olaims by Certtfieate is to hold againft the title of the
college, Ttrbere ic is mentioned m the certificate. .


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144 A P P E N D I K.

No* ATI. But to confidcr the confcquences of this doQrine, if thir

^^J'^JJ^J^^ certificate fliould be adjudged void ; and thefc are twofold.

quencesofad- Firft, that the adventurer and foldier would be perfedly

cernfittte*^ flripped of his inheritance, becaufe he could not bcTe-

void. prifedj which were to dcftroy the title of a perfon who

was a purchafer for valuable confiderations under fcverd

ads of parliament, where by tho(e ad^s he was intitletl

to relief^ and where he had likewife paid an half year's

rent for the King's royal bounty, which went towards the

charges of the adl, and likewife one pennyper acre to the

cotnmiflioners and fub-commiffroners, for fetiliog the ad;

arid was likewife retrenched by the ad of explanation

one third of his real due, and by the terms of that tid,

was not to be removed till he was repriTed ; now if after

all, this confirudion of the defendant's were to take

place, after all thefe payments and dedudions, he would

be turned out without any fatisfadion at all; whereas the

college only fuffers by their own laches and negligence

where they ought to claim.

Secondly, The lad and moft terrible confequence of all,

if this certificate fhould be adjudged void, is, that it would

introduce an uncertainty of property through 'the whole

kingdom. That which is the prefent happinefs of the

kingdom of Ireland is, that after ^11 the revolutions and

changes which have been in their property, they are now

come to (6 firm and lading a foundation, that it is to be

J hoped will never be Ihaken; and the very bafis of this

i cftablifhment is this certificate and patent. This is the

j beginning of every man's tide ; men have no deeds or evi-

I dences higher, to (hew whofe eftate it was before the

• date of the certificate.

1 take

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, I take it therefore that thcfe laws of fettlement ang
explanation are to be conftrued, according to the intent
of the legillature, for the quiet of the kingdom ; and always
liberally to be expounded to the fettlement of perfons in-
ierefted ; and it will be a very dangerous thing to the peace
of the kingdom, if the certificate and patent fhould in any
cafe whatfoever be conftrued to be coram nonjudice.

I ihould have all manner of tendernefs for the rights of
the college; they are' nurferies of religion ^nd learning,
and therefore all donations for increafe and augmentation
of their -revenue are^ fo be liberally expounded. But \
dare not make fuch an expofition in behalf of the college,
as would let in a generar uncertainty into the property of
the whole kingdom ; and if I fhould adjudge the certificate
and patent to be void, I don^t know what would be the
confequence of fuch a judgment; hoW many other certifi-
cates and patents may be contrary ta the direction of the
a£i is what no man living can (brefee. If any perfon fhould
meet with fuccefs on fuch a queftion as this, and receive
a judgment in his favour, that a certificate and a patent
are void, it would beget infinite queftions^n other certi-
ficates and patents, and fo by degrees the whole a£t of
parliament would be unravelled. On ftatutes that arc
made for quieting the kingdom, fuch refolutions are to be
made as tend to the peace of the nation, and 'tis better
the non-claimant fhould lofe the right he would have had,
if he had claimed, than a general uncertainty fhould have
been made in property, by the negligence and laches of
thofe who had not claimed.

It is a general rule of judgment that a mifchief fhould

rather be admitted than an inconvenience ; it is only a

Vol. II. U mifchief

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mifchief to the dcfencjaivts, if t]jcir right be barred by
their .own laches in not Qlaimingj but it witt be an incon-
venience to the whole kingdom, if the certificates and
patents (under which the titles, purchafes and ^rttment^
of this kingdom (houid ftand) ftiall be ad^d^ed void, and
coram tipn judice. Wherefore I think judgment ihonid be
given for the plaintiff.

The CASE o£ ICellet agai»ft CARTHrifoiw;

On the ^Qb of («itli$nH»jnt •n^ «xplM»lH>a«

Thecde. William Keilet brings^ an cjdStmtnt oil tlie dMnift

of Philip Savage, Thomas Maule ^ad John Jlj^w^
againft Honora M^Cadrtymoce^ of the kads in tha dedib-
A fpectai ver- ration. On not guHt^t the jury find a i^ctftl Ypt4i£ti
ffejtamen?' ^^^^ '^ plaintiff. dninM by bttw pMeijt f«wi th«
^n ^b^ dele. Crown ; and that Daniel McCarthy mora, 90 th« 4^4 (^
Auguft 1 64 1, was feifed in fee of the premiflfeij and
that he afterwards, viz, the 14th of Auguft 1^47^ by
indenture of feoffment, conveyed the promiffps (if^fr
alia) to the marquifs of Antrim and Alexander M^Donnel
V and their heira, to tlie u& of the fatd M^Carthymore and
dame Sarah his wife, and the longer liver of th^mi and
after their deceafe, as Jto one moiety of the preipi^es^ to
the ufe of the heirs male of the faid Sarah, by the faid
Daniel MH^arthymore, and a; to the otl>er moiety, to thi?
ufe of the faid Sarah apd her heirs. They further iind that
the premiffes were feifed and ffequeftcred the ift of May
1653, on account of the rebellion which begun the 23d
of Odober 1641 ; they find the veiling cjaufe in the ad of
fettlement, apd the clau&t folio 540, that the Kipg (haJl
have power to nominate commiflioners who are ^thori^ed


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A P P E N D' t X. 147

t<y pvttthfs^ Kings's d6cktatk)iuiadioilru£lb^ ia execution ;
and ^a^ thoy da kt purfoaam of the fame is declared to
bjs goodi ficmvand efledual ia law to all intents and pur-
pe(€f ^;> and* that they and every of them are ratified and
confirmed to the' final fettlemeat of every fuch pcrfon>
tbcrrbeirs;andalIig)M, according to fuch decrees, orders,
fotdemente^nd jodgincnts^ as have been, or (hall be by the
faid commiffioncrs refpeQively given, for or concerning; any
matter cognizable by them, againft his Majefty, his heirs
aiid £acoeiR)r&, and aU aod every, other perfon and perfons
Viiiatfbever, their heirs aad aflig^s, any thing in the faid
dedarationraod ijiftrudions notwithflanding. They find
that-D^oicl M*Carth5?more pjaf in his petition before the
coiDmiiliQnersi letting^ forth^ that be was feized of the ppe*
roiilm tbeaSthoCOficiber 1641, and for many years after,
that h& waa aa imiocent papift and prayed to be reftored.
Tkat Daatd M'Cafthymore died the 14th of January
i66ai^. that^tbe faid daoie Sarah aad Charlea M^Carthy^
mora^ foit^of th& laid DanieU put in their petition^ fetting
forlsh theiaid fettlement, and alledging that Daniel, at the
time, of making ithe faid deed, was innocent^ and that the
faid Sarah and. Charles were innocent papifls; on which
there- was ii* final hearing the 28<h' of July, 25 Car. IL
And ^ oa - f^ich hearing, it appealed; (he faid Sarah was anr -
ioafs^ceat . papiA, and. that Damcl McCarthy more in hia
lifc^tioie, attdoantii the time of-liis^death, was an innocent
papift> and that the faid fettlement appeared to them ; and
.therefore they order and decree, that the (aid Sarah is an
laaoceptpapift, witbttvand accord^ni^ to the meaning r^f
the faid^iia ; a«d^that the laid Daniel M^Carthymorej ia-
bis life tim^ q^adhoc,^ was* an :inaocent papift; and that
the claimant Sarah be forthwith reftored ; and that fhe and
her affigns may hold and enjoy the premiffes, except, as is

U a- hereafter

No. VI

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148 A P P' E N D I X.

J^^^J^ hereafter excepted, by virtue of the feid feoffment-; and "
by and after the death of the faid McCarthy more did of
right or ought to come to her for and daring her natural'
life, (he the faid claimant having claimed no other eftate
than for life by her faid claim. They find further, that
Charles is dead and Honora is his widow, and in poffef-
fion by jointure, and that Randal fon and heir of Charles
is living. . . . .

Lord chief And it Was argued by the chief baron -, firft, it is

mJn"'* *'^"' P^a*^ ^y the vefting claufe in the fettlement, all lands

All lands that Were in feifin and fequeftration vrcifc tefted in the

SSefe'cf b^ Cfown, as a royal truftee, to fettle the adventurers and

the aa of fee- foldicrs in the lands that were jufily forfeited to the

iiThV Crown Crown, of which they were in poffeffion in May 1649,

as a royal and fuch iunoccut perfons as were to be reftored in their*

tbcp^urp^fw. ^wn proper lands. And then comes the di vefting claufe

Pivefting which fay 8, that the aJl is not to extend to the vefting

claufe as to any knds or tenements of: any innocent papifts, their

pifts. innocerit heirs, executors, adminiftratprs and afligns. But
it appears both by the declaration that is incorporated
with the ad, and by^the inftrudions, that the then

But thcinno- inuoccnt perfons vrore to be reftored immediately; nor is/

no°\oT? *^^ divefting claufe, fo to be conftrued, to take the lands'

reftored im- again from the King, till they had made their innocence

mediately, nor gppgaf before the commiffioners ; for fince the ftatute

until adjudi* *^* , irv**

cation of in- divefts the lauds of mnocent papms, and of their mnocent

ftoccnce. j^^j^^^ cxecutors and' adminiftrators, it appears by -the

declaration and inftrudiotis that the tniiocent papifts were

to make their innocence appear^ before they could be

reftored to their lands, or intitlcd to a rcftitution.

. Now

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A P P B N D I X,


Now as to the innocence of papifts, and their reftitu- vJ^^^^-^^
tion to their former lands, there were three cafes that Thr^ c«fc«
chiefly hapi)ened before the commiflioners on this head. commiffione

as to the in*

Pirft, Of innocents reftored by the decree of the com- "^^^^* ^^
miflioners. P'P* •

Secondly, Of innocents left to the law.
Thirdly, Of innocents quoad hoc.

And firft. As to. innocents reftored by the decree of the i ft cafe, Of
oommiflioners, the cafe was thus, viz, if there was any Jior^^^by^^'
foldier or adventurer that was iathe poiTefllon of any land th^commifn
to which an innocent papift claimed to be reftored, if ^""''
the foldier or adventurer did not deny the land to be the
eftate of fuch papift, then fuch foldiex; or adventurer was
to b£ reprifcd, and the papift to b6 reftored to his lands, if
he made out his innocence^ and then the whole conteft,
between the papift and the adventurer was, whether the
papiil was innocent ; and if that was proved, the lands*
were thereby divefted out of the Crown, and the papift
reftored to the pofteflion, the adventurer being firft.re-*
prifed in. other lands.

Secondly, Of innocents left to the law. This was , ad. The caie

Online LibraryGorges Edmond HowardA treatise of the Exchequer and revenue of Ireland, Volume 2 → online text (page 11 of 31)