The opinion of the court was delivered by
Gibson, C. J.
The exceptions in this case are so diversified that it is difficult to deal with the argument in support of them; and if some of the heads of it have escaped our attention, the omission is to be attributed to their own refinement. They seem to be : 1. That the plea of nul tied record was tried by the jury. 2. That the forfeiture of the recognizance was not recorded when suit was brought for it. 3. That the magistrate had no authority to certify the acknowledgment of it. 4. That it was taken in a prosecution for a crime unknown to the law.
1. The issue on the plea of nul tiel record was, in truth, not tried by the jury. The recognizance was put in evidence at the trial, but judgment was not pronounced on the plea till after the verdict. The plea to the court and the pleas to the country were tried at the same time, but not together—the one by the court, and the other by the jury. After verdict for the plaintiff, the court gave judgment for him specially on the plea of nul tiel record ; and this was less irregular than our peculiar practice generally is. When the verdict is for the plaintiff and his replication of habetur tale recordum is also sustained on inspection, the course is to enter judgment for him generally, as it disposes of the whole case; if the plea is sustained, judgment is entered for the defendant nonobstante veredicto. Though it would have been an irregularity had the jury determined it, it would not have prejudiced the defendant, and, consequently, not have been cause of reversal.
2. The forfeiture of the recognizance being complete, by the failure to bring forth the body, could not be affected by the misprision of the clerk in omitting to record it. The record is not the forfeiture, but the evidence of it; and a court has certainly power to supply it nunc pro tune. The old notion that the record remains in the breast of the court only till the end of the term, has yielded to necessity, convenience, and common sense. Countless instances of amendment after the term, but ostensibly made during it, are to be found in our own books, and those of our neighbours. The power of the court to amend being established, the conclusiveness of the record as amended, follows of course. Even were the amendment erroneous, the regularity of it could not be inquired of collaterally; and not being under the act of 1806, it could not be inquired of even directly on a writ of error. These are plain legal truths, which ought not to have again been drawn into discussion.
8. As a committing magistrate, the recorder of Philadelphia has been expressly vested with the power of a justice of the peace by the thirteenth and fourteenth sections of the act of incorporation; and the grant of it has not been repealed. It is expressly declared that “he shall hold the said office (of recorder), and be vested with all the powers and jurisdictions thereof; and with all the powers and jurisdictions of a justice of the peace within the said city.” The jurisdiction of a justice, thus conferred, was consequently not an accessory of his jurisdiction as recorder, but itself a principle not emanative but cumulative, joined to it. Such too was the magisterial jurisdiction of the aldermen conferred in the same way, and not divested by stripping them of jurisdiction as judges of the Mayor’s Court. No one supposes that the ordinary powers of a register of wills depends on his judicial seat, or that he might not grant letters of administration, though the legislature should repeal the statute which erected the Register’s Court.
To the argument that the amended constitution ’ordains that justices of the peace be chosen by the people for a term of years, instead of being appointed by the executive, as Mr. Vaux was, during good behaviour, it is an answer to say that the recorder is not a justice of the peace, but a corporate officer, having the power of a committing magistrate, not by virtue of his office, but by virtue of a special grant of that power annexed to it. It follows not, that because he is a magistrate, his power must be judicial. From the president to a tide-waiter, from a governor to a constable, every ruler or functionary of the law is a magistrate. Every judge is a magistrate, but every magistrate is not a judge. A justice of the peace, though not entirely destitute of legal discretion, is not a judge in criminal matters, further than he is made so by statute ; and in the exercise of it he holds no court. The jurisdiction-of a committing magistrate has been exercised by the recorder uninterruptedly, and it would create much disorder to interfere with it.
4. The nature of the offence for which the prisoner was held to bail, shows it to have been indictable. No judge ever doubted that a conspiracy to cheat is as clearly criminal as a conspiracy to steal; and though there is perhaps no case exactly in point, we do not hesitate to pronounce it so.
Judgment affirmed.