ERNEST EDWARD FLETCHER,J. - (1.) This is an application to examine two defendants, defendants Nos. 2 and 28, upon commission. The application is made by the first defendant who has appeared in the suit. The defendants Nos. 2 and 28 have not appeared in the suit and they both reside and carry on business at Rangoon. It seems to me to be quite clear from the cases that have been cited on both sides that it is a matter of judicial discretion as to the issue of a commission to examine a witness or witnesses in the suit. I do not agree with Mr. Jackson that this is really an application to examine a defendant in the suit. It is quite true that the two witnesses who are asked to be examined on commission are defendants to the suit but they have filed no written statements and are not defending the suit. The application, I think, therefore, must be treated as if it were an application by the first defendant to examine two defendants without having reference to the fact that they are defendants who are not contesting the suit. It seems to me that the law or rather what can be deduced from the authorities is very conveniently laid down in the Annual Practice of the present year, page 614, where it is stated that the application will not be granted unless the Court is satisfied first that the application is made bona fide, secondly that the issue in respect of which the evidence is required is one which the Court ought to try, thirdly that the witnesses to be examined would give evidence material to the issue, and fourthly, there are some good reasons why they cannot be examined here. On the first of those grounds, Mr. Jackson admits that his affidavit does not say that his application is made bona fide and not for the purpose of delay but he states that a requisition has been assented to by the other side, postponing the trial of the case for one month. On the other hand, the plaintiffs and the opposing defendants have sworn that the present application is made mala fide. It seems to me so far from being satisfied that the present application is made bona fide and not for the purpose of delay, that no sufficient explanation has been given why the first defendant has waited until the eve of the case coming on for trial before he applied for the present commission. The next point is as to what these witnesses are going to be called to prove. That is stated in the 7th paragraph of the affidavit which has been filed in support of the application where the applicant states that "I say that both the second and the twenty-eighth defendants, who have not entered appearance in the suit, would be material witnesses on my behalf for the purpose of this suit, and they would be able to depose to the several contentious facts and other issues raised in my written statement." It seems to me that this is too much a general statement as to what these two witnesses are going to be examined on. If you accept the statement in its broadest terms, it means that everything in the suit is going to be proved by these two witnesses. Moreover, there is considerable doubt in this case as to whether these two witnesses will not come. At least they have made no affidavit themselves and Counsel depends on two telegrams which are annexed to the affidavit of the first defendant. It seems to me that on those grounds this application ought not to be granted. The present application must, therefore, be dismissed and dismissed with costs.;