The judge of probate assumes that under the statute the confirmation was regular, because the •statute requires it to be confirmed on the next or any subsequent day after the filing wdien the court is in session. General Laws 1813, p. 511, § 22. To reach tins conclusion 'it is necessary to hold either that the probate court is always ■open for business, so that every day when the judge shall •act is court day, or else that the continuance pending the proceeding kept the court in session. Neither qiosition is tenable. The probate court is always open for ordinary •routine business, but for contested matters-the statute contemplates there shall be regular terms — Comp. L., § 5231— •and proceedings in which a party has a right to be heard -cannot bo brought up at other times except on notice. The continuance of which the judge speaks in this case was of no force. The proceeding was before commissioners whom he had appointed, it is true, but it was not in court, and the •court could not direct any continuance In respect to it. The order of confirmation was therefore without authority ■and must be vacated.
Writ issued.