Joseph Story.

Commentaries on equity jurisprudence, as administered in England ..., Volume 2 online

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under the denomination of Bills of Peace.

§ 858. By a Bill of Peace we are to understand a bill brought
by a person to establish and perpetuate a right, which he claims,
and which, from its nature, may be controverted by different
persons, at different times, and by different actions; or, where
separate attempts have already been unsuccessfully made to over-
throw the same right, and justice requires that the party should
be quieted in t)io right, if it is already sufficiently established ; or
if it should be sufficiently established under tiie direction of the
court.^ The obvious design of such a bill is to procure repose
from perpetual litigation, and, therefore, it is justly called a Bill
of Peace. The general doctrine of public policy, which, in some
form or other, may be found in the jurisprudence of every civil-
ized country, is, that an end ought to be put to litigation, and,
above all, to fruitless litigation ; Interest reipublicce ut sit finis
Ktium. If suits might be perpetually Brpught to litigate the same
questions between the same parties, or their privies, as often as
either should choose, it is obvious that remedial justice would
soon become a mere mockery ; for the termination of one suit
would only become the signal for the institution of a new one ;
and the expenses might become ruinous to all the parties. The
obvious ground* of the jurisdiction of courts of equity, in cases of
this sort, is to* suppress useless litigation, and to prevent multi-
plicity of suits.

§ 854. One class of cases, to which this remedial process is
properly applied, is, where there is one general right to be estab-

» AnUy § 826.
* Post, § 873 to 958.

' See Eldridge tr. Hill, 2 Johns. Ch. R 281, 282; Alexander v, Pendleton, 8
Cranch, R 462, 468 ; 3 Wooddes. Lect. 56, p. 416, 417.

XQ. JUK. — VOL. U. 4



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50 EQUITT JUBISPBTTDXKGE. [CH. XXQ.

lished against a great number of persons. And it may be resorted
to, either where one person claims or defends a right against
many, or where many claim or defend a right against one.^ In
such cases, courts of equity interpose in order to prevent multi-
plicity of suits ; ' for, as each separate party may sue, or may be
sued, in a separate action at law, and each suit would only decide
the particular right in question between the plaintiff and defen-
dant in that action, litigation might become interminable. Courts
of equity, therefore, having a power to bring all the parties before
them, will at once proceed to the ascertainment of the general
right ; and, if it be necessary, they will ascertain it by an action
or issue at law, and then make a decree finally binding upon all
the parties.'

I Jeremy on Eq. Jurbd. B. S, ch. 2, § 1, p. 348 ; Eldridge v. Hill, 2 Johns. Ch.
R. 281 ; Alexander o. Pendleton, 8 Cranch, R. 462, 468.

' Elme Hospital v, Andover, 1 Vem. 266 ; Hanson o. Gardiner, 7 Yes. 809,
810 ; Ware o. Horwood, 14 Yes. 82, 83 ; Dilley v. Doig, 2 Yes. Jr. 486 ; Cooper,
£q. PI. Introd. xxxiv.; Eldridge v. Hill, 2 Johns. Ch. B. 281.

* Eden on Injunctions, ch. 16, p. 858, 859, 860 ; Cooper, Eq! PI. ch. 8, p. 158,
154; Gilb. Forum Boman. 195 ; 1 Madd. Ch. Pr. 140, 141 ; 2 Eq. Abridg. 172,
pL 8, 5; Mitford, Eq. PI. by Jeremy, 147 ; Tenham ». Herbert, 2 Atk. R. 488,
484 ; Eldridge v. Hill, 2 Johns. Ch. R. 281, 282 ; Trustees of Huntington v, NicoU,
8 Johns. R 566, 589, 590, 591, 595, 602, 608. The nature of this jurisdiction is
thus stated by Lord Redesdale : '* Courts of equity will also prevent multiplicity
of suits ; and the cases in which it is attempted, and the means used for that pur-
pose, are various. With this view, where one general legal right is claimed against
several distinct persons, a bill may be brought to establish the right. Thus, where
a right of fishery was chdmed by a corporation throughout the course of a con-
cnderable river, and was opposed by the lords of manors and owners of lands ad-
joining, a bill was entertained to establish the right agunst the several opponents,
and a demurrer was overruled. As the object of such bills is to prevent multi-
plicity of suits, by determining the rights of the parties upon issues directed by
the court, if necessary for its information, instead of suffering the parties to be
harassed by a number of separate suits, in which each suit would only determine
the particular right in question between the plaintifif and the defendant in it, such
a bill can scarcely be sustained, where a right is disputed between two persons
only, until the right has been tried and decided upon at law. Indeed, in most
cases it is held, that the plaintiff ought to establish his right by a determination of
a court of law in his favor, before he files his bill in equity. And, if he has not
so done, and the right he claims has not the sanction of long possession, and he
has any means of trying the matter at law, a demurrer will hold. If he has not
been actually interrupted or dispossessed, so that he has had no opportunity of try-
ing his right, he may bring a bill to establish it, though he has not previously
recovered in affirmance of it at law, and in such a case a demurrer has been over-
ruled." Mitf. Eq. PL by Jeremy, 145, 146.



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§854-857.] . BILLS OF peaoe. 61

§ 855. Bills of this nature may be brought by a parson for
tithes against his parishioners ; by parishioners against a parson
to establish a modus ; by a lord against tenants for an encroach-
ment under color of a common right ; or by tenants against the
lord for disturbance of a common right ; by a party in interest to
establish a toll due by a custom ; by a like party to establish the
rights to profits of a fair, there being several claimants ; by a lord
to establish an enclosure, which he has approved under the statute
of Merton, and which his tenants throw down, although sufficient
common of pasture is left.^

§ 856. So, where a party has possession, and claims a right of
fishery for a considerable distance on a river, and the riparian pro-
prietors set up several adverse rights; he may have a Bill of Peace
against all of them to establish his right, and quiet his possession.^
So, a Bill of Peace will lie to settle the amount of a general fine
to be paid by all the copyhold tenants of a manor. So, it will
lie to establish a right of common of the freehold tenants of a
manor .^ So, it will lie to establish a duty, claimed by a municipal
corporation against many persons, although there is no privity
between them.^

§ 857. But to entitle a party to maintain a Bill of Peace, it
must be clear that there is a right claimed, which affects many
persons, and that a suitable number of parties in interest are
brought before the court ; for, if the right is disputed between
two persons only, not for themselves and all others in interest, but
for themselves alone, the bill will be dismissed ; for it cannot then
conclude any persons, but the very defendants.^

^ Ibid. ; How v. Tenants of Bromsgrove, 1 Vern. 22 ; Elme Hospital v, Andover,
1 Vern. 266 ; Pawlet v. Ingres, 1 Vern. SOS ; Brown v. Vermuden, 1 Ch. Cas.
272; Radge v. Hopkins, 2 Eq. Abridg. p. 170, pi. 27; Conyers v. Abergavenny,
1 Atk. 284, 285; Poor v. Clark, 2 Atk. 515; Weeks r. Slake, 2 Vern. 301 ; Ar-
lington V, Fawkes, 2 Vern. 856 ; Corporation of Carlisle v. Wilson, IS Yes. 279,
280; Hanson v. Gardiner, 7 Yes. 805, 809, 810; Duke of Norfolk v. Myers, 4
Madd.Bep. 50, 117.

• Mayor of York v. Pilkington, 1 Atk. R 282 ; Tenham v, Herbert, 2 Atk. R.
483. Sec New River Company v. Graves, 2 Yem. 481, 432.

• Middleton v. Jackson, 1 Ch. Rep. 18 (33) ; Popham o. Lancaster, 1 Cb. Rep.
(96); Cowper v. Clerk, 8 P. Will. 157 ; Powell v. Powis, 1 Tounge & Jerv. 159.

^ City of London v. Perkins, 4 Bro. Pari. R. 157 ; 1 Madd. Ch. Pr. 138, 189 ;
Mayor of York r. Pilkington, 1 Atk. K 284 ; Tenham v. Herbert, 2 Atk. 488, 484.

• Disney t;. Robertson, Bnnb. R 41 ; Cowper v. Clerk, 3 P. Will. 157 ; Welby
V. Doke of Rutland, 6 Bro. Pari. R. 575 ; S. C 3 Bro. Pari. Cas. by Tomlins, 89 ;



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52 EQUITY JUBISPBUDENCE. [CH. XXIL

§ 858. It seems, too, that courts of equity will not, upon a bill
of this nature, decree a perpetual injunction for the establishment
or the enjoyment of the right of a party, who claims in contradic-
tion to a public right ; as if he claims an exclusive right to a high-
way, or to a common navigable river, or an exclusive right to a
rope-ferry across a river ; for it is said, that this would be to en-
join all the people of the state or country.* But the true principle
is, that courts of equity will not, in such cases, upon principles of
public policy, intercept the assertion of public rights.

§ 859. Another class of cases to which Bills of Peace are now
ordinarily applied, is, where the plaintiff has, after repeated and sat-
isfactory trials, established his right at law ; and yet is in danger
of further litigation and obstruction to his right from new attempts
to controvert it. Under such circumstances, courts of equity
will interfere, and grant a perpetual injunction to quiet the pos-
session of the plaintiff, and to suppress future litigation of the
right.2 This exercise of jurisdiction was formerly much ques-
tioned. Lord Cowper, in a celebrated case, where the title to
land had been five several times tried in an ejectment, and five
verdicts given in fevor of the plaintiff, refused to sustain the juris-
diction for a perpetual injunction ; and said that the application
was new, and did not fall under the general notion of a Bill of

Mitford, Eq. PL by Jeremy, 169, 170 ; Cooper Eq. PL ch. 1, p. 41 ; 1 Madd. Ch.
Pr. 140 ; Weller v, Smeaton, 1 Bro. Ch. K 572; Baker v. B^n, 2 Eq. Abridg.
171, pL 2 ; Select Cas. in Ch. 74, 75 ; Alexander v. Pendleton, 8 Cranch, R 462,
468.

> 1 Madd. Ch. Pr. 189; Hilton v. Lord Scarborough, 2 Eq. Abridg. 171, pL 2 ;
Mitf. Eq. by Jeremy, 148.

* See Trustees of Huntington v. Nicoll, S Johns. R. 589, 590, 591, 595, 602 ;
Alexander v. Pendleton, 8 Cranch^ 462, 468 ; Com. Dig. Chancery, D. 13 ; Eaii
of Bath V. Sherwin, Prec. Ch. 261 ; S, C. 10 Mod. R 1 ; Mitf. Eq. PL by Jeremy,
143, 144 ; Eden on Injunct. ch. 16, p. 356 ; Eldridge r. Hill, 2 Johns. Ch. R 281,
Lord Redesdale thus describes this jurisdiction : " In many cases the courts of
ordinary jurisdiction admit, at least for a certain time, of repeated attempts to
litigate the same question. To put an end to the oppression occasioned by the
abuse of this privilege, the courts of equity have assumed a jurisdiction. Thus,
actions of ejectment having become the usual mode of trying titles at the com-
mon law, and judgments in those actions not being in any degree conclusive,
the courts of equity have interfered; and, after repeated trials, and . satisfactory
determination of questions, have granted perpetual injunctions to restrain further
litigation ; and thus have in some degree put that restraint upon litigation, which
is the policy of the common law in the case of real actions.** Mitford, Eq. PL by
Jeremy, 148, 144.



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§858-860.] BILtS OF PEACE. 53

Peace, and this was only a suit between A. and B., and one man
is able to contend against another. But his decision was over-
ruled by the House of Lords, and a perpetual injunction was
decreed upon the ground that it was the only adequate means of
suppressing oppressive litigation and irreparable mischief.^ And
this doctrine has ever since been steadily adhered to. However,
courts of equity will not interfere in such cases before a trial at
law ; nor until the right has been satisfactorily established at law.
But, if the right is satisfactorily established, it is not material
what number of trials have taken place, whether two only, or
more.*

§ 860. These seem to be the only classes of cases in which Bills
of Peace, technically so called, will lie.^ But there are other
cases bearing a close analogy to them, in which a like relief is
granted ; as, for instance, cases of confusion of boundaries, which,
however, require some superinduced equity ; and cases of quit-
rents, where the remedy at law is either lost or deficient.^ Cases
of mines and collieries may also be mentioned, where courts of
equity will entertain bills in the nature of bills Quia timet, and
Bills of Peace, where there is danger that the mine may be ruined
in the mean time, before the right can be established ; and upon
such a bill the court will grant an adequate remedy by quieting
the party in the enjoyment of his right, by restoring things to
their old condition, and by establishing the right by a decree.^

» Earl of Bath v. Sherwin, Free. Ch. 261 ; S. C. 10 Mod. 1 ; S. C. 1 Bro. Pari.
Cas. 266, 270 [2 Bro. Pari. Cas. hj Tomlins, 217]; Leighton v. Leigbton, 1 P.
WilL 671, 672; Tnwtees of Huntington v. NicoU, 8 Johns. Rep. 666, 589, 690,
591, 696, 601, 602 ; Mitf. £q. Pi. by Jeremy, 148, 144 ; Gilb. Forum Roman.
195.

' DevoDsher v. Newenham, 2 Sch. & Lefr. 208, 209 ; Leighton v. Leighton, 1
P. WilL 671, 672 ; Tenbam v. Herbert, 2 Atk. 488 ; Earl of Darlington v. Bowes,
1 Eden, R. 270, 271, 272 ; Eden on Injunctions, cb. 16, p. 864, 865 ; Eldridge v.
Hill, 2 Johns. Gb. R. 281, 282; Weller v. Smeaton, 1 Cox, R. 102; S. C. 1 Bro.
Ch. R. 678 ; Alexander v. Pendleton, 8 Crancb, R. 462, 468. [* See Patterson
V. HcCamant, 28 Mo. (7 Jones), 210.]

• Eldridge v. Hill, 2 Johns. Ch. R. 281, 282.

« Eden on Injunctions, ch. 16, p. 861, 862 ; Ante, § 622, 684, 686 ; Com. Dig.
Chancery, D. 18.

• Falmouth (Lord) v. Innys, Moseley, R. 87, 89 ; Post, § 929. See, also, Alex-
ander r. Pendleton, 8 Crancb, R. 462, 468. In Bush v. Western, Free. Cb. 680,
the plaintiff had been in possession of a watercourse upwards of sixty years, and
the defendant claimed the land through which the watercourse ran, under a fore-



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54 EQUITT JUBISPBUDENCE. [CH. TSSL

Other cases, also, where the object of the bill is to prevent vezar
tious suits, will occur under the head of Injunctions.^



CHAPTER XXIII.

DTJUNCTIONS. .

* 4 861. InjimctioDS are restrictiTe and mandatory.

862. Extend to all classes of jurisdiction. Injoncdoa Mils.

863. Special prayer. Rest in discretion.

864. This is exclunyelj a matter of equity jurisdiction.

865. Injunctions similwr to the interdicts of the civil law.
866 - 868. Definition of the interdicts of the ciWl law.
869, 870. History of this form of redress in England, Ireland, and Borne.

871. Only the more common occasions of its nse to he treated of.

872. Mr. Eden's definition of its exercise.

873. Enumeration of the different forms of injunction.

874. The jurisdiction strenuously resisted, but now firmly established.

875. The writ has no control over the common-law courts.

876. 876 a. Will restrain tiie collection of judgments already satbfied.

877. Without this power equity would fiul of its chief benefit.

878. Interference in case of accident.

879. Illustration of judgment recovered on mistaken evidence.

880. The case of fraud in enforcing an unjust judgment.

881. Where discovery indispensable} injunction granted.

882. Enumeration of cases where injunctions are granted.

883. Equity will enjoin a suit against a surety discfaaiged.

884. So also in niarshalling assets, and securities, &c

885. Will interfere where one gains unjust advantage at law.

886. Injunction granted at all stages, of suits at law.

887. Judgment against good conscience may be enjoined.

888. Bill for new trial granted on same grounds as bills of review.

889. Will compel the party to elect in what form he proceeds.

890. Will require creditors to acquiesce in remedy by creditor's bill.

890 a. Will not enjoin an action unless there is good defence.

891. Will protect its own officers ttom process of other courts.

891 a. Will not allow its officers to sue in other courts.

892. Injunctions are common and special.

893. Equity will not enjoin criminal proceedhigs, &e.

closed mortgage. The defendant obstmcted the watercourse, and the plaintiff
brought a bill for an injunction to quiet his, the plaintiff's possession, and it was
held maintainable notwithstanding there was a remedy at law, and the title had
not been established at law.
^ Past, § 925, 926, 927, 928, 929, 930.



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§ 860.] INJUKGTI0N3. 55

894. Will not ra-eaomise a qoestioii decided at Uw.

895. Will not relieve the partj frOm the oonseqaence of laches.
895 a. ETon if thej oocsr in a foreign foram.

896. Will not refonn injnfttioe cansed by negligence.

897. Will not reliere the party from miitakes in pleading.

898. Grounds upon which eqoitj enjoins snits in other oonrts.

899. May enjoin party from proceeding in foreign conrt

900. Bat not as between state and national tribunals.

901. Equity will restrain rexatioas litigation.
901 a. Multiplictty of suits/ at law, ground of equity jurisdiction.
90S. Will protect a party from relitigating decision of foreign court

903. Will restrain defendant from unconscientious use of technicality.

904. Or plaintiff from similar pursuit of legal claim.

905. iDJunctions against the alienation of property.

906. Against transfonring aegotiable instruments.

907. So too against the transfer of stock and other Yaloables,

908. To restrain oonreyances pendenie Uu*
909 - 91 1. Bemedy for waate at common law.

912. Bemedy in equity more extensive.

913. Gases of purely equitable interference.

914. In cases where the title is merely an equitable one.

915. Cases of equitable waste.

916. Tenants in common, parceners, and j(^t tenants.

91 7. Equity restrMUS permissiTe, and takes account of past, waste.

918. 918 a. Extends to watte committed by disseiiors.

919. Becapitulation of instances of equitaUe interference.

920. Nuisances, public and priTate.

921. Public nuisance and pnrprestnre.

922. Purpresture as distinguished from nnisanoe.

923. Public nuisance remediable in equity.

924. Advantages of equitable relief in such cases.

924 a. Equity will not eigoin nutsances upon doubtful grounds.

925. The mischief must be obvious and oppressive, &c.

925 a. Illustrations of the application, of the rule.
925 & Nuisance is a question to be settled at law, ordinarily.
925 c. Temporary nuisance will not be enjoined.

I. Testimony of the persons injured must be had.

925 d. The want of proper distinction between law and equity in America.
925 e. Equity will not enforce covenants for quiet enjoyment by ii^unction.
925/. Important case in New Hampshire, defining extent of equity juiisdiction in



925 g. Case of injunction to restrain acts in violation of covenant

925 A. How fax public bridges may become nuisances.

926. Bestrains party from darkening neighbors' lights.

926 a. And from building in violation of contract

927. Will enjoin againat violation of other similar rights.

927 a. Extent of the right to lateral support of one's soil.

928. Will restrain repeated trespasses of a grievous character.

929. Blustratiens of the application of the rule.
929 a. Damage to land adjoining street

929 h. Consideration of many recent cases bearing on the point.



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56



EQUmr JURISPRUDENCE.



[CH. xxnL



\ 929 c. The owner of an ancient window may claim perfect immonitj from all inter-
ference with his light *

} 929 d. How far one can preacribe for continoing what was onginaUj a nuisance.

I 929 6. Equity jurisdiction in regard to waterconiaea.

i 930. Protection of patents and copyrights by injunction.

f 93\, 932. Action at law a wholly inadequate remedy.

} 933. Equity prerents future injury, and compels account of past

f 934. Will not interfere until right established, at law, or by time.

> 935. Same course pursued as to copyrights.
I 936. Will not protect immoral, irreligious, or scandalous works.
I 937. This is upon the ground that illegal matters haTe no status in courts of jns-

tioe.

> 938. Courts of equity will not determine questions of theology, &c.
f 939. How far an abridgment, extracts, &c., are allowable.
I 940. To what extent one author inay avail himself of the aid of others,
i 941. The extent of vaKation in the books is determined by the master.
\ 941 a. What will be a proper use of a work protected by copyright
I 941 6. The interest of publishers in copyrights, not assignable.

> 942. It is no objection to an injunction against publication that parts of it are not
within the prohibition.

\ 943. Injunctions to restrain the publication of manuscripts.
\ 944. So also of letters in the hands of those to whom addressed,
f 945. The literary property of such letters remains in the author.
\ 946 - 948. The same rule should be applied to all private letters.

> 948 a. Equity interferes by injunction only to protect literary property.

> 949. One may be restrained from publishing oral lectures.
} 950. And from using plays performed at a theatre,
f 951. Equity will restrain the use of another's trade-marks,
f 951 a. So also from using a song upon the credit of another,
i 951 &. To what extent trade-marks will be protected.
I 951 c, 951 d. The ground of such injunction, fraud and damage.
\ 952. Equity will restrain from the use of confidential secrets.
f 953. Will restrain the conyeyanoe of real estate.

I 954, 955. Or making any change in the state of property, pending litigation.
I 955 a. Will not control legal discretion unless abused.
} 956. Will enforoe'dnty to subsequent owners.
} 957. Will protect property in ships, and in timber cut down.
\ 957 a. Will aid suitor in foreign court.

» 957 &. How frur, and in what mode, courts of equity interfero in regard to matters
t of the jurisdiction of the forum.

> 957 c. Injunctions against proceedings abroad, in contravention of the domestic in-
ilvent laws.

\ 958. Will enforce covenants where no adequate remedy at law.
} 958 a. Will not ordinarily enforce a part of a contract by injunction.
959. Injunctions often used to effect specific redress.
I 959 a. Will only be granted in exercise of just discretion.
I 959 6. Cronits decline to define the limits of the remedy.
} 959 c. Court of equity liquidates damages for breach of injunction.
I 959 d. Will protect burial-places by injunction.

• 959 «. How hr the court will enforce the stipulations of a contract by way of
ijnnction.



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§ 861.] INJUNCTIONS. 57

\ 959/ How fiir injanctions maj afie^t foreign soTereigns, and foreign corporation!
and contracts.

4 959 g. Conrts of equity will not enforce a contract, legal by the Ux loci contractui,
if contrary to the policy of the forum.

4 959 A. How far courts of equity will regard rights depending on foreign soy-
ereignty.]

§ 861. A Writ op Injunction may be described to be a judicial
process, whereby a party is required to do a particular ^hing, or
to refrain from doing a particular thing,^ according to the ezi-
gency of the writ.^ The most common form of injunctions is that
which operates as a restraint upon the party in the exercise of his
real or supposed rights; and is sometimes called the remedial
writ of injunction. The other form commanding an act to be
done, is sometimes called tiie judicial writ, because it issues after
a decree, and is in the nature of an execution to enforce the same ;
as, for instance, it may contain a direction to the party defendant
to yield up, or to quiet, or to continue, the possession of the land,
or other property, which constitutes the subject-matter of the de-
cree in favor of the other party.'

^ [It seems a court of eqaity has no power to order a party to undo what he
has done. Bradbury v. The Manchester, Sheffield and Lincolnshire Railway Co.
8 £ng. Law & Eq. K 148. Unless after a decree ; in which case the injunction
becomes a judicial process. Washington University v. Green, 1 Md. Ch. Dec. 97.]

* GUb. Forum Roman, ch. 11, p. 192, &c. ; Eden en Injunct ch. 14, p. 290, &c.;
1 Wooddes. Lect 7, p. 206. It has been remarked by Mr. Eden, that wherever
a plaintiff appears entitled to equitable relief, if it consists in restraining the com-
mianon or the continuance of some act of the defendant, a court of equity ad-
miniaters that relief by injunction. In many cases it enforces it by means of the
process of a writ of injunction, properly so called. But he proceeds to remark :
"> But as the known forms of that remedy are by no means adapted to every casoi
in which the court has jurisdiction to interpose, the prohibition has, in numerous
cases, been issued and conveyed in the shape merely of an order in the nature of



Online LibraryJoseph StoryCommentaries on equity jurisprudence, as administered in England ..., Volume 2 → online text (page 7 of 101)