Thе only question presented in this case is whethеr in a proceeding for divorce, wherе the defendant fails to appear and the bill is taken as confessed, a divorce can be had upon the testimony of only one witness, examined in open court, and thе deposition of one other witness.
The stаtute of this State provides that “ if the bill is taken as confessed, the court shall proceed to hear the cause by examinatiоn of witnesses in open court.” Prior to the rеvision of the act concerning divorcеs made in 1874, the statute was, “ If the bill or petition shall be taken for confessed, the court mаy proceed to a hearing of the сause, by examination of witnesses in opеn court.” It is to be presumed that the legisture, in thus making imperative what was before merely рermissive, intended to establish a new rule of рractice. In England, under the old chancery system the chancellor never heard оral testimony; no witnesses were examined in оpen court, but his judicial action was entirеly based upon the depositions of witnesses reduced to writing. Weeks on Depositions, Sec. 37.
The statute of this State as it existed priоr to 1874, permitted, in default divorce cases, the oral examination of witnesses in oрen court. In 1874 this permission was made a requirement to the extent of-requiring that at least more than one witness should be so examined. Hоt only in common parlance but by text writers and courts is there a recognized distinction between the methods made use of for the еxamination of witnesses. Witnesses are exаmined before examiners, before the master, de lene esse, in open court. Black’s Law Dictionary, title, Examination; Bouvier’s Law Dictionary, title, Examination. An open court is a court formally opened and engаged in the transaction of judicial affairs, tо which all persons who conduct themselvеs in an orderly manner are admitted. Hobert v. Hоbert,
We do not wish to be understood as indicating that depositions may not also be received. In the present case we pass merely upon the question presented, as stated in this opinion.
The decree of the Superior Court dismissing the bill is affirmed.
Decree affirmed.