delivered the opinion of the court.

In this case it appears that accounts were referred by the court below to auditors, whose report was filed in the clerk’s office out of term time, and at the succeeding term of the court was by order, homologated, and made its judgment; from which the defendant appealed.

There are several bills of exception taken to the regularity of the proceedings in the inferior court; but we deem it necessary to notice only one, as our conclusion on that requires the cause to be remanded.

Previous to the order of court homologating the report of the auditors, the defendant’s counsel moved for permission to file his opposition to said report, which was refused, as more than ten days had elapsed from the time the proceedings of the auditors had been filed in the clerk’s office; and to the opinion of the court, overruling this motion a bill of exceptions was taken. We are of opinion that the court below erred in this part of its proceedings. It was necessary that the motion to homologate should be made in open court, and precede the notice to the opposite party to show cause, &c. According to the terms of the Code of Practice, articles 456-7, ten days notice is allowed to the party dissatisfied with the report of experts or auditors to file his opposition: and this notice must of necessity be subsequent to the rule to show cause against the homologation. These articles of the Code of Practice are evidently ill calculated to hasten the administration of justice in the country, where the courts hold session only once in .six months: but they are positive law, and must be obeyed.

*74It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled: And it is further ordered, that the cause be sent back to the District Court to be tried de novo, with instructions to the judge a quo, to allow the opposition of the defendant and appellant to the report of the auditors in this case to be filed: And that the appellee pay the costs of this appeal.