Shaw, C. J. There is no reason why the St. of 1852 should not have the same construction practically which it has literally. The words are, “ The evidence shall be taken in the same manner ” in equity as at law. That is to say, it is to be taken viva voce when it can be so taken, and when depositions would be allowed in an action at law, they may be taken in equity; and all the rules of law, as to the taking and filing of depositions at law, will apply in equity. And this statute necessarily supersedes the rules of court, as to the taking and filing of depositions in chancery.
The complainant is, therefore, entitled to have a commission issue, as he would have been according to the established rule and practice at law, where testimony is to be taken out of the jurisdiction of the court.