Codrington and England April if a bill be bring mere to perpetuate testimony  though the defendant examine witness themselves the plaintiff will not be  entitle to their cost a person enclose land in a town under a custom for that  purpose another bring a action against he in order to try that right a bill be  thereupon bring in order to establish the custom a issue be direct in that  Cause to try the custom and find against the defendant yet the plaintiff shall  not have the cost which be incur in the court of equity several person enclose  land under a custom for that purpose another bring eight action against they  on that account a bill be thereupon bring to establish the custom and to stay  the proceed in those action a issue be direct in that Cause to try the custom  and a verdict find in favour of it the defendant shall pay the cost in equity  as well as at law dame Elizabeth Codrington and several other person who be  owner of land in the parish of wherein be a right of common belong to certain  of the inhabitant make several enclosure of they John and William England  bring eight action against they upon that account the present bill be  thereupon bring by dame Elizabeth Codrington who be tenant for life and by sir  William her son who be remainderman in tail and likewise Barnardiston by the  several other owner who have make enclosure of these land against John and  William England set forth that they have a custom to enclose these land and  pray among other thing that this custom may be establish and that the  testimony of their witness may be perpetuate when this Cause come to be hear  the court direct a issue to try the custom that issue be accord try and a  verdict find in favour of the custom the Cause come now on again on the equity  reserve and relate to the matter of cost Lord chancellor say that with regard  to the cost at law it be extreme clear that they must be pay by the defendant  the only doubt be with regard to the cost in this court and his lordship  opinion be that even these cost must be pay by the defendant his Lordship say  that as to these cost he think the matter a little doubtful at first but all  circumstance consider the plaintiff must be entitle to they have this be a  bill mere bring to perpetuate the testimony of the plaintiff witness without  pray any relief though the defendant have examine witness themselves the  plaintiff will not have be entitle to their cost but the present bill be not  bare bring to perpetuate the testimony of the plaintiff witness but it be  bring for relief likewise in order to have the custom of enclose establish  however in case the defendant have only bring one action in order to have try  the right of enclose his lordship say he shall not have think that the bring  the present bill be necessary and consequent the plaintiff will not have be  entitle to these cost but in the present Barnardiston case the defendant think  proper to bring eight action at law against the plaintiff upon the account of  their enclose and put the plaintiff under a necessity to bring their bill in  order to put a stop to this multiplicity of action the bring this number of  suit be most vexatious in the defendant and for that reason they ought to pay  the cost in this court as well as at law there be the more reason for make  they pay these cost because one of the defendant enjoy some land which his  mother enclose under this custom and other land which he enclose himself and  so his lordship be please to decree accord