case paulet versus ingres see case collect in Ellice v Roupell No Bea v note a  eoden die Eq can ab pl pl S c a bill to examine witness in perpetuan rei  memory be not proper until the party have establish his right at law Vid post  case if one commoner bring a action against a b for oppress the common or for  use the common where he ought not and recover S or other small sum for damage  and afterward another commoner bring the like action against a b he may bring  a bill in equity that the plaintiff in such action may accept the like damage  one commoner have bring a action on the case against another commoner for  oppress the common and have recover damage the bill be bring by the defendant  at law to examine his witness to prove his right of common in perpetuan rei  memory per cur such a bill be not to be admit in this court a commoner ought  not to come here to prove his right of common until he have recover at law in  affirmance of his right anon pale yellow Eq Rep so wherever a matter be proper  triable at law as a title Gell v Hayward post Bechinall v Arnold post Wynn v  hatty pre Chan Parry v Roger post Phillips v Carew p wms brandling v Ord atk  so where the right by which the plaintiff claim be not distinct show Cressett  and other v Mitton bro Ch Rep but allow where affidavit make that witness be  infirm and unable to travel Phillips v Carew ub sup and that no other person  than the witness be privy to the matter Shirley v earl Ferrars p wms so where  party in possession be only threaten with disturbance and not actual disturb  Wynn v hatty ub sup et vide Lord Dursley v fitzharding Ves where the  distinction between bill to perpetuate testimony and to examine de bene be be  take and the case on each head refer to but if the bill have be that one  commoner have recover S or other Vernon chancery case small sum for damage  against the plaintiff for oppress the common or for use the common where he  ought not and therefore that the other commoner may accept of like damage for  what be pass to prevent charge at law that have be in the nature of a bill of  peace and have be a proper bill in this court how v tenant of Bromsgrove ante  Ewelme hospital v Andover ante Reg lib b fol by which it appear this be on a  plea and also on a demurrer for want of party which be allow Vernon chancery  case er p