concurring.—Under the Code, a bail bond in criminal cases is designed to serve the same purpose, and is in purport and effect like a recognizance at common law. A recognizance is defined to be an obligation of record entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law which is therein specified. (2 Blackst. Com. 341; 1 Chitty Crim. Law, 90.) "When forfeited it is made absolute, and some of the authorities indicate that it has the force and effect of a j udgment. (4 Blackst. Com. 452.)
“A recognizance,” said McKean, C. J., “ is a matter of record; it is in the nature of a judgment, and the process upon it, whether a sdre fados or summons, is for the purpose of carrying it into execution, and is rather judicial than original; it is no further to be reckoned an original suit than that the defendant has a right to plead to it; it is founded upon the recognizance, and must be considered as flowing from it and partaking of its nature; *249and when final judgment is given, the whole is to be taken as one record.” (Respublica v. Cobbett, 3 Dall. 475.) Sutherland, J., said: “A recognizance is an acknowledgment of a debt of record; it has many of the attributes of a judgment.” (People v. Van Eps, 4 Wend. 392.) “The recognizance being a matter of record is held to be rather of the nature of a judgment than a contract, and for this reason it is that the most usual proceeding against the cognizor for breach of condition is by scire facias, and it is said that an execution may issue on such scire facias.” (State v. Walker, 56 N. H. 178; Shultze v. State, 43 Md. 306.) From all this it appears that a recognizance is considered as a judgment, being an obligation solemnly acknowledged and entered of record; and that when a default is made and a forfeiture taken, a scire facias may be issued upon it requiring the cognizor to show cause why the plaintiff shall not have the advantage of that record, that is, why execution shall not issue for the sum named in the recognizance.
An undertaking of bail in criminal cases under the Code is in definition and purpose a recognizance. It is an undertaking entered before a competent court or magistrate by the persons who engage as sureties for a defendant, that he will appear according to the conditions of the undertaking, or in default thereof, that they will pay a specified sum. (Code, §§ 1457,1482.) It is thus an obligation acknowledged and entered of record, and when made absolute by forfeiture judicially declared by reason of a default, or failure to appear according to its terms, it partakes more of the nature of a judgment than a contract, and is in principle and effect the same as a recognizance at common law. Nor is there any other difference in principle, nor in the enforcement of the one or the other, only as the Code practice has abolished the remedies as technically known at common law. Instead of the writ of scire facias, a remedy unknown to our practice, the Code provides that the district attorney may, etc., proceed by action against the bail upon their undertaking. But in either case, whether scire facias is issued or an action begun, the object is for the purpose of carrying the forfeited recognizance or undertaking into execution and effect. The law makes *250it the duty of the district attorney to prosecute for and collect all fines and forfeitures. He must prosecute for them whenever that course is essential to secure their collection. Whether he shall proceed by that method or employ some other must necessarily depend upon circumstances and be left largely to his discretion.
In the present case, when the default occurred and the for-' feiture was taken, the record was put into that shape or condition, that when the term adjourned it became a matter for the exercise of his official discretion as to the course he should pursue for its enforcement and collection. The debt was solemnly acknowledged of record, which at common law was in the nature of or considered as a judgment, and which from its similarity under the Code must partake of some of its attributes. It is true an execution could not have issued for its enforcement, and yet in this incipient stage it was in the nature of a judgment and could only be satisfied of record. After reciting the facts of default, the record reads that “it was ordered and adjudged by the court that the said undertaking of the defendant is hereby forfeited, and that the State of Oregon do have and recover of and from the said sureties, etc., the said sum of six thousand dollars,” etc. Considered as such, it not only represented in form, but was in the nature of a judgment on the civil side, and money collected or recovered from the sureties by the district attorney under it, and applied in satisfaction of such record, released them and entitled him to compensation for his services as much as if he had prosecuted it by action to final judgment. (Respublica v. Cobbett, supra.)
In this view, the objection urged is obviated, and as the equity of the case is undisputed, the judgment may be upheld.