the direction of the court, apply the money in satisfaction thereof, and after satisfying the same must refund the surplus, if any, to the defendant. [L. 1864; D. Cd. § 283; H. C. § 1486.]

$ 1522. Surrender of Defendant - When, How, and by Whom Made.

At any time before the forfeiture of their undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the officer to whose custody he was committed at the time of giving bail, in the following manner:

1. A certified copy of the undertaking of the bail must be delivered to the officer, who must detain the defendant in his custody thereon, as upon a commitment, and by a certificate signed with his name of office, acknowledge the surrender;

2. At any time after the surrender of the defendant, either by his bail or himself, the court or judge thereof, at which the defendant is bound to appear, or where the action is pending, or the judgment appealed from is given, as the case may be, may, upon reasonable notice to the district attorney, order that the bail be exonerated, and upon the entry or filing of such order, they are exonerated accordingly. [L. 1864; D. Cd. § 284; H. C. § 1487.]

$1523. Bail May Arrest Defendant for the Purpose of Surrender.

For the purpose of surrendering the defendant, the bail, at any time before the forfeiture of their undertaking, and at any place within the state, may themselves arrest him, or by a written authority, indorsed on a certified copy of the undertaking, may empower any other person to do so. [L. 1864; D. Cd. § 285 ; H. C. § 1488.]

§ 1524. On Surrender, if Money Deposited, Must be Refunded.

If money have been deposited in lieu of bail, and the defendant, at any time before the forfeiture thereof, surrender himself to the officer to whose custody he was committed at the time of making the deposit, in the manner provided in section 1522, the court or judge thereof must order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon reasonable notice of the application to the district attorney. [L. 1864; D. Cd. § 286; H. C. § 1489.]

$ 1525. Notice to the District Attorney to Obtain Order for Deposit.

The notice to be given to the district attorney, as required in this chapter, may be given to him personally or to any person authorized to appear for him, as provided in sections 1515 and 1516. [L. 1864; D. Cd. § 287; H. C. § 1490.]

§ 1526. Undertaking of Bail, When and How Forfeited.

If, without sufficient excuse, the defendant neglect or fail to appear for arraignment, or for trial or judgment, or upon any other occasion when

his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered in its journal; and the undertaking of bail or the money deposited in lieu thereof, as the case may be, is thereupon forfeited. [L. 1864; D. Cd. § 288; H. C. § 1491.]

See note to § 1505.

It seems that the failure of the principal in an undertaking of bail to comply with its conditions by appearing for trial, can be proved only by the journal of the court in which the proceedings on the indictment are had: Clifford v. Marston, 14 Or. 426,

13 Pac. 62.

An entry in the journal of a court where an indictment was triable, made on a day subsequent to that fixed for the trial, which

recites after the title of the cause that "now on this day came the State of Oregon, by M. D. Clifford, district attorney, and the defendant, though duly called three times at the courthouse door, came not but made default," sufficiently imports that the case came on for trial upon such indictment, and that the defendant, without excuse, failed to appear for trial: Clifford v. Marston, 14 Or. 426, 13 Pac. 62.

§ 1527. Forfeiture of Undertaking — When and how Discharged.

If, at any time before the final adjournment of the court, the defendant appear and satisfactorily excuse his neglect or failure, the court may direct the forfeiture of the undertaking or deposit to be discharged, upon such terms as are just. [L. 1864; D. Cd. § 289; H. C. § 1492.]

§ 1528. Forfeiture to be Enforced by Action.

If the forfeiture be not discharged, as provided in the last section, the district attorney may, at any time after the adjournment of the court, proceed, by action only, against the bail upon their undertaking. [L. 1864; D. Cd. § 290; H. C. § 1493.]

§ 1529. Remission of Forfeiture.

At any time before judgment against the bail, in an action upon the undertaking, they may apply to the court for a remission of the forfeiture, and thereupon the court, upon good cause shown, may remit the forfeiture or any part thereof, upon such terms as may be just and reasonable, according to the circumstances of the case. [L. 1864; D. Cd. § 291; H. C. § 1494.]

§ 1530. Remission, Conditions of, Part Remission and Judgment for Residue. The court can only remit the forfeiture, in whole or in part, upon the payment of the costs and expenses incurred in the proceedings for its enforcement; and if part only be remitted, judgment must be given against the bail for the remainder, and such judgment is a bar to an action upon the undertaking, or if one be already commenced, it is thereby abated. [L. 1864; D. Cd. § 292 ; H. C. § 1495.]

§ 1531. Application for Remission, how Made - Judgment on, Final.

The application for remission must be upon at least ten days' notice to the district attorney, with copies of all affidavits and papers on which it is founded. The application must admit the forfeiture and their legal obligation to pay the sum mentioned in the undertaking, and the judg

ment or order of the court in the matter is final. [L. 1864; D. Cd. § 293; H. C. § 1496.]

§ 1532. Deposit of Money, how Disposed of When Forfeited.

If money deposited in lieu of bail is forfeited, and the forfeiture be not discharged, as provided in section 1527, the clerk with whom it is deposited must, after the final adjournment of the court, forthwith deposit the same with the county treasurer. [L. 1864; D. Cd. § 294; H. C. § 1497.]

§ 1533. Defendant, when May be Recommitted.

The court at which the defendant is bound to appear, or where the action is pending, or the judgment appealed from is given, may, by an order entered upon its journal, direct the arrest of the defendant and his commitment to the officer to whose custody he was committed at the time of giving bail, and his detention until legally discharged, in the following cases:1. When, by reason of his neglect or failure to appear, he has incurred a forfeiture of his bail, or of money deposited in lieu thereof, as provided in section 1526;

2. When it satisfactorily appears to the court that his bail, or either of them, are dead or insufficient, or have removed from the state;

3. Upon an indictment being found in the cases provided for in section 1347. [L. 1864; D. Cd. § 295 ; H. C. § 1498.]

§ 1534. Order for Recommitment, what May Contain, and how Executed. The order for the recommitment of the defendant must recite, generally, the facts upon which it is founded, and direct that the defendant be arrested by any sheriff or his deputy in this state, and committed to the officer to whose custody he was committed at the time of giving bail, to be detained until legally discharged. [L. 1864; D. Cd. § 296; H. C. § 1499.]

§ 1535. Defendant May be Arrested on Copy of Order, Same as a Bench Warrant.

The defendant may be arrested pursuant to the order, upon a certified copy thereof, in any county in the state, in the same manner as upon a bench warrant, and upon the request of the district attorney, copies of the order may be sent to the sheriffs of different counties. [L. 1864; D. Cd. § 297; H. C. § 1500.]

§ 1536. Recommitment in Case of Failure to Appear for Judgment.

If the order recite, as the ground upon which it is made, the failure of the defendant to appear for judgment upon conviction, the defendant must be committed according to the requirement of the order. [L. 1864; D. Cd. § 298; H. C. § 1501.]

1537. Bail May be Allowed on Order for Recommitment.

If the order be made for any other cause than that specified in the

last section, and the crime be bailable, the court may direct in the order that the defendant be admitted to bail, in an amount to be therein specified. [L. 1864; D. Cd. §299; H. C. § 1502.]

§ 1538. Bail, in such Case, by Whom Taken.

When the defendant is admitted to bail, the bail may be taken by any magistrate having authority to take bail, as provided in section 1497, or by any particular magistrate, to be designated by the order. [L. 1864; D. Cd. § 300; H. C. 1503.]

§ 1539. Undertaking of Bail, upon Recommitment, Form Of.

When bail is taken upon an order for the recommitment of the defendant, the undertaking of bail must be in substantially the form prescribed in section 1506 for the original undertaking of bail, except that it need not refer to the original order of admission to bail, and must specify the court in which the order for recommitment and admission to bail is made, and the date of such order. [L. 1864; D. Cd. § 301; H. C. § 1504.]

$ 1540. Qualifications of Bail, and how put In.

The bail must possess the qualifications and must be put in in all respects in the manner prescribed in sections 1492 to 1517, inclusive, of this code. [L. 1864; D. Cd. § 302; H. C. § 1505.]

CHAPTER XV.

OF COMPELLING THE ATTENDANCE OF WITNESSES.

§ 1541. Subpoena, Definition Of.

The process by which the attendance of a witness before a court or magistrate is required is a subpœna. [L. 1864; D. Cd. § 303; H. C. § 1506.]

§ 1542. Magistrate May Issue Subpoena.

A magistrate before whom an information is laid or complaint made. may issue subpoenas, subscribed by him, for witnesses within the state, either on behalf of the state or of the defendant. [L. 1864; D. Cd. § 304; H. C. § 1507.]

§ 1543. Witnesses Before Grand Jury, District Attorney May Issue Subpoena For.

The district attorney may issue subpoenas, subscribed by him, for witnesses within the state, in support of the prosecution, or for such other witnesses as the grand jury may direct, to appear before the grand jury upon an investigation pending before them. [L. 1864; D. Cd. § 305; H. C. § 1508.]

See note to § 1545.

VOL. 1.-38.

§ 1544. District Attorney May Issue Subpoenas for Witnesses at Trial.

The district attorney may in like manner issue subpoenas for not to exceed five witnesses within the state, in support of an indictment to appear before the court at which it is to be tried: Provided however, that the court or judge thereof may, upon good cause shown, make an order allowing subpoenas to issue for a greater number of witnesses. [L. 1864; D. Cd. § 306 ; L. 1885, p. 129, §1; H. C. § 1509.]

§ 1545. Clerk to Issue Subpoenas for Defendant.

The clerk of a court in which a criminal action is pending for trial must at all times, upon the application of the defendant, issue in blank subpoenas, under the seal of the court, and subscribed by him as clerk, for not to exceed five witnesses, within the state, at the expense of the state: Provided however, that the court or judge thereof may, upon good cause shown, make an order allowing subpoenas to issue for a greater number of witnesses: And provided further, that any defendant may have subpoenas issued for any number of witnesses at his own expense without an order of the court. [L. 1864; D. Cd. § 307; L. 1885, p. 130, § 2; H. C. § 1510.]

Section 807 of the civil code has no relation to criminal proceedings. This and § 1543 are qualified by §§ 1551 and 1552, post, and, when read together, provide that a person shall not be obliged to attend as a witness in such cases out of the county where he resides or is served with subpoena, unless his residence is within thirty miles of the place of holding the court, except by special showing, and indorsement

being made by the judge or clerk of the court of an order upon the subpoena requiring his attendance; in such case he must attend, if served within the state: Sargent v. Umatilla County, 13 Or. 445, 11 Pac. 225.

A witness in such case is not entitled to double fee, but simply the ordinary fees: Sargent v. Umatilla County, 13 Or. 445, 11 Pac. 225.

§ 1546. Proceeding to Obtain Subpoenas for More Than Five Witnesses. If either party in a criminal action shall desire more than five witnesses, as in this act above provided, application therefor shall be made to the court or judge thereof by motion for an order directing the clerk to issue subpoenas for such additional witnesses, which motion shall be supported either by the statement of the district attorney in writing, or by the affidavit of the defendant, which statement and affidavit shall state the names of such witnesses, their places of residence, and the facts expected to be proven by each of them; and if it shall appear from such statement or affidavit that the witnesses, or either of them, therein named, are necessary and material, the court or judge thereof shall make an order directing the clerk to issue subpoenas for such witnesses, or so many of them as shall appear to be necessary and material to a fair, full, and impartial trial. [L. 1885, p. 130, § 3; H. C. § 1511.]

§ 1547. Forms of Subpoenas.

A subpoena authorized by the last four sections must be substantially in the following form:

1. By a magistrate: