dissenting:
I do not concur with a majority of the court in the decision of this case, and I have concluded to express my own views in reference to the questions involved.
Section 66, chapter 110, of the Revised Statutes of 1874, provides: “Any person, for a debt bona fide due, may confess judgment by himself, or attorney duly authorized, either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof become liens, in like manner and extent as judgments entered in term.” Under what was supposed to be the authority conferred by this statute, on the 12th day of January, 1883, the judgment in question was confessed before the clerk of the circuit court of Sangamon county, and entered up in due form. It appears from the record that the fall term of the circuit court of Sangamon county commenced on the 2d day of October, 1882, and continued in session from day to day until December 27, when an order was entered adjourning the court until January 29, 1883, when the court convened, and continued with the business of
the term from day to day until February 3, 1883, when court adjourned sine die, or until court in course. If the judgment in question was confessed in term time, it is manifestly void, as the statute only authorized a judgment by confession before the clerk of the court in vacation. But it is contended that the period of adjournment from December 27 to January 29, within the meaning of the statute, is to be regarded as vacation, and hence the judgment is valid.
The important inquiry then presented by the record is, what is the proper construction to be placed upon the words of the statute, “in term time,” and the words, “in vacation.” This statute being in derogation of the common law, in passing upon it, the well known rule that it should not be enlarged by construction, must be kept in view.
Words and phrases in a statute, the meaning of which have been ascertained, are, when used in a subsequent statute, to be understood in the same sense. (Potter’s Dwarris, 274.) If, therefore, the words “in term time, ” and “vacation, ” at the time they were incorporated into the statute had a well known legal meaning, it will be presumed that the legislature intended they should be used in that sense. In 6 Jacobs’ Law Dic. 323, the author defines vacation as follows: “Is all the time between the end of one term and the beginning of another, and it begins the last day of every term as soon as the court rises.” Bouvier, (vol. 2, page 619,) defines the word vacation as follows: “That period of time between the end of one term and beginning of another.” In speaking of the word term, the same author says: “The whole term is considered as but one day, so that the judges may at any time during the term revise their judgments.” These definitions of the words used are in harmony with those given by other law writers. Indeed, no writer that we have examined gives any other or different meaning of the terms used, and we think it may be safely said that the words, at the time the statute was adopted, had a well' known legal meaning.
But aside from this view of the question, it seems to be well settled by decisions of courts, that “vacation,” when used in reference to courts, is that time between the end or final adjournment of a term and the beginning of another. In Mechanic’s Bank of Alexander v. Withers, 6 Wheat. 106, where the regular term began on the third Monday in April and continued until the 16th of May, when it adjourned to the fourth Monday of June, it was held that the adjournment from the 16th of May to the fourth Monday in June was but a continuation of the April term. The same doctrine was announced in Commonwealth v. Sessions of Norfolk, 5 Mass. 436, where it is said: “It is well understood by the people generally, that a court holden by adjournment is not a new term, but a continuance of' the former term of court, and it is not unfrequent for courts of sessions to adjourn for the accommodation of persons having business in it. ” In Lieb v. Commonwealth, 9 Wall. 200, it was held that a day to which a court was adjourned is a part of the same term at which the adjournment was made. In Sawyer v. Bryson, 10 Kan. 200, it was held that an adjourned term of court is in no proper sense an independent, distinct term, but merely a prolongation or continuance of that already begun. In Smith v. Smith, 17 Ind. 75,-an adjourned term was held to be a part of the regular term.
Under section 35, chapter 37, of the Be vised Statutes of 1874, the circuit judge had authority to adjourn from day to day, or to any day not beyond the first day of the next term of court, and the adjournment shown by the record was authorized by this statute. But we are satisfied that the adjournment from December 27 to January 29 did not close the term, nor was the interim a vacation, within the meaning of the statute. The interim could not be vacation, as the full term of court had not ended. No final adjournment of the term had taken place, and hence vacation had not commenced. If there was a vacation here, and the clerk was authorized to act because the court had adjourned for a period of thirty-two days, for the same reason and upon -the same principle he might act if the adjournment was but for ten days, or one day, or even one hour. I do not think the statute will bear such a construction. Suppose the court had adjourned for two hours, instead of thirty-two days, and defendant in error had appeared before the clerk and confessed the judgment, would any reasonable person contend.that the judgment was confessed in vacation ? I apprehend not; and yet in principle there is no difference between a short adjournment and a long one, unless the adjournment exceeds the time provided by the statute. It is a mistake to suppose that on the 12th day of January, when the judgment was entered, the court had no power to act. The court has the power to review orders made during the term, at any time before final judgment, and had the court seen proper, on the 12th day of January the order of adjournment might have been vacated, and upon a proper showing the business of the court resumed. At all events, I am satisfied that the vacation intended by and within the meaning of the statute can not begin until a final adjournment of court has taken place, and as the court had not adjourned for the term when the judgment was confessed before the clerk, the judgment was unauthorized, and void.