case duke of dorset versus sergeant girdler Eq Abr S c roll Abr vern atk atk a  man who be in possession of a fishery may bring a bill to examine his witness  in perpetuan rei memory and establish his right though he have not recover in  affirmance of it at law by if he be not in possession this be a bill bring for  a commission to examine his witness in perpetuan rei memory to establish his  sole right of fishery and it be suggest in the bill that the defendant pretend  a sole right of fishery and threaten to bring action and disturb the plaintiff  when all his witness shall be dead to this bill the defendant demurrer for  that the plaintiff have not verify his title at law and therefore have no  right to bring his bill in the first instance but the demurrer be overrule and  this difference be take and agree to by the court that if one be out of  possession have only right to fishery common rentcharge he who bring such bill  ought never to be allow to do so but a demurrer to it will be good because he  may and ought first to enter his action and establish his title at law  otherwise publication not be to pass till after the death of the witness as in  those case it never do without special order of the court they may be guilty  of the gross perjury and yet go unpunished beside that the party have a remedy  at law the other side ought not to be deprive of the opportunity of confront  the witness and examine they public which have precedent in chancery always be  find the most effectual method for discover of the truth but if a man be in  actual possession and be only threaten with disturbance by another who pretend  a right lie have no other way in the world to perpetuate the testimony of his  witness but by such a bill as this be for not be actual interrupt or disturb  he can bring no action at law and in such case if this demurrer shall be allow  there be a end of all bill to perpetuate the testimony of witness to will and  such like wherein the party pray no relief nor ought to do but only a  commission for the examination of their witness and yet even in these case if  the plaintiff shall afterward be evict or disturb these deposition can be make  use of so long as the witness be live and may he have to be examine before a  jury but in the present case if the defendant have not only threaten to  disturb the plaintiff but have actual disturb he by fish daily as it be say he  do he ought to have plead this and that the plaintiff ought therefore to seek  his remedy at law or if the plaintiff have show in this bill that the  defendant have actual disturb he by fish then the demurrer have be proper but  not for bare threaten that here he have by his answer insist on his right of  fishery and that he hope to prove it and for several other matter disclose in  his answer he insist on his right thereto and hope to prove it and yet by his  demurrer will debar the plaintiff from prove any thing at all and a case be  cite between Wynn and hatty before Lord keeper wright at the Inner temple hall  where a bill be bring of the same nature touch a common and the demurrer allow  because there it appear of his own show that he be interrupt and dispossess  and therefore have his remedy at law precedent in chancery er p