delivered the opinion of the court.
It is a settled principle that a recognizance, to be valid, must be taken by a competent court or officer, under circumstances warranted by law, “ and for the performance of some act that the law allows to be secured in that way, and in the form prescribed for that purpose.” (22 Mo. 478.)
After the justice had issued his warrant of commitment and delivered it to the sheriff, his authority over the subject was exhausted, and the prisoner could only be discharged from custody, on bail or otherwise, by a court or magistrate authorized by law to issue a writ of habeas corpus (R. C. 1845, p. 862, § 85) ; and justices of the peace have no authority to issue the writ of habeas corpus. (R. C. 1845, p. 556, sec. 2.) The party bound must appear before the officer who takes his recognizance, and the committing magistrate can not approve a recognizance taken by another officer.
The justice then who took the recognizance had no authority for that purpose, because he had not tried or assisted in the trial of the case, and he could not issue a writ of habeas corpus, and the justice who tried the case had no authority over the subject, because he had committed the prisoner, and the parties bound did not appear before him.
In our opinion the recognizance was void, and all the judges concurring, the judgment will be reversed.