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charged, as elsewhere provided, the court has power to order an additional number of jurors drawn from the jury list to fill up the regular panel, in the same manner as the original panel is required to be drawn, which jurors shall be summoned and required to attend as jurors, in the same manner and with like effect as if drawn on the original panel: Provided, that whenever the regular panel becomes exhausted for any reason the court may in its discretion direct the sheriff to summon forthwith from the body of the county, persons whose names are upon the tax roll and having the qualifications of jurors to serve in said cause, or order an additional number of jurors drawn from the jury list as hereinabove provided, but persons so summoned from the body of the county or from the jury list as last provided shall not be disqualified by reason thereof from being drawn and serving as jurors upon the regular panel as hereinbefore provided, and shall not be subject to challenge for that cause. [L. 1862; D. Cd. § 937; H. C. § 968; L. 1893, p. 84, § 4; L. 1901, p. 385, § 3.]

After the court has discharged the regular panel of jurors for the term, it has no authority to summon a trial jury for the trial of a particular cause at that term, against the will of either party: Mosseau v. Veeder, 2 Or. 113.

Where objection is made to allowing the sheriff to summon talesmen for a jury, on the ground that he is interested and prejudiced, which is denied, the action of the court is discretionary: State v. Savage, 36 Or. 199, 60 Pac. 610.

$987. Referee, Definition Of.



A referee is a person appointed by the court or a judicial officer, with


1. To try an issue of law or of fact in a civil action, suit, or proceeding, and report thereon;

2. To ascertain any other fact in a civil action, suit, or proceeding, when necessary for the information of the court, and report the fact, or to take and report the evidence in a suit in equity;

3. To execute an order, judgment, or decree, or to exercise any other power or perform any other duty expressly authorized by this code. [L. 1862; D. Cd. § 938; H. C. § 969.]

§ 988. Reference, Definition Of.

The appointment of a referee is denominated a reference. The manner and occasion of making an order of reference are elsewhere provided for in this code. [L. 1862; D. Cd. § 939; H. C. § 970.]

As to trials by referee, see § 161, et seq., and notes.

As to in what equity cases reference may be made, see § 406, and note.



989. Commissioner, How Appointed-Tenure of Office, Powers, and Duties. The governor may appoint as many commissioners in each of the other states, or in a territory of the United States, or in the District of Columbia, as he may deem expedient, who shall hold their offices for four years, and may, within the state, territory, or district for which they are appointed, and not otherwise, take and certify,

1. The proof or acknowledgment of a conveyance of real property within this state, or of any other written instrument to be used or operate therein;

2. The acknowledgment of satisfaction of any judgment or decree of a court of this state;

3. An affidavit or deposition to be used in any court of justice or before any judicial officer of this state; and,

4. To exercise any other power, and perform any other duty, conferred or imposed upon them by this code or other statute. [L. 1862; D. Cd. § 940; H. C. § 971.]

§ 990. Seal and Oath of Office, When and Where Filed.

A commissioner appointed under the last section shall, before he can exercise the powers therein conferred, provide himself with a seal of office, with the arms of this state engraved in the center thereof, and with the following inscription surrounding the same: "Commissioner for Oregon,

-;" the blank following the word "Oregon" to be filled with the name of the state, territory, or district for which such commissioner is appointed, and take and subscribe an oath before a judicial officer in the county, city, or town where he resides, faithfully to perform the duties of the office of a commissioner, to take affidavits, depositions, and the proof and acknowledg ment of deeds, out of this state, according to the laws thereof, and file such oath and an impression of such seal in the office of the secretary of this state. [L. 1862 ; D. Cd. § 941; H. C. § 972.]



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§ 991. District Attorney is the Public Prosecutor.

The district attorney in each district is the public prosecutor therein. [L. 1862 ; D. Cd. § 942 ; H. C. § 973.]

§ 992. Must Attend Courts.

He shall attend the terms of all courts having jurisdiction of public offenses within his district, and conduct, on behalf of the state, all prosecutions for such offenses therein. [L. 1862; D. Cd. § 943; H. C. § 974.]

§ 993. Duties as to Proceedings Before Magistrates and Grand Jury.

He shall institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses, when he has information that any such offense has been committed, and attend upon and advise the grand jury when required. [L. 1862; D. Cd. § 944; H. C. § 975.]

$994. To Prosecute for Penalties and Defend when State Party.

He shall prosecute for all penalties and forfeitures to the state, which may be incurred in any county in his district, and for which no other mode

of prosecution and collection is expressly provided by statute, and in like case, prosecute or defend, as the case may be, all actions, suits, or proceedings in any county in his district to which the state or such county may be a party. [L. 1862; D. Cd. § 945; H. C. § 976.]

The district attorney should sue on an undertaking given as bail in criminal cases: Hannah v. Wells, 4 Or. 249.

A suit to foreclose a mortgage given to school land commissioners is to be brought in the name of the state, and the district attorney must prosecute or defend the same as the case may be: In re Ison, 6 Or. 404. In this case, it was held that the district attorney had the right to fees; but in Hazard's Appeal, 9 Or. 366, it is held that the district attorney has no right to intervene and take charge of such suit without any authority from the board of commis

$995. Duties in Suit for Divorce.

sioners, and in such a case he has no right to fees.

In a suit on a note and mortgage between private parties, where no question of usury as to the debt is raised, the district attorney has no right to intervene for the forfeiture of such loan to the school fund on the ground that such contract was usurious. It is only when such a contract has been declared usurious that the district attorney is authorized to sue for the forfeiture: Holladay v. Holladay, 13 Or. 530, 11 Pac. 260, 12 Pac. 821.

In any suit for the dissolution of the marriage contract, or to have the same declared void, the state is to be deemed a party defendant, and the party plaintiff in such suit shall cause the summons to be served upon the district attorney of the district within which the suit is commenced at least ten days before the term at which the defendant is required to appear and answer. It shall be the duty of such district attorney, so far as may be necessary to prevent fraud or collusion in such suit, to control the proceedings on the part of the defense, and in case the defendant does not appear therein, or defend against the same in good faith, to make a defense therein on behalf of the state. [L. 1862; D. Cd. § 946; H. C. § 977.]

§ 996. Must Deliver Receipt for Money Received by Him.

When he receives money or property in his official capacity, he shall deliver a receipt therefor to the person from whom he receives it, and file a duplicate thereof with the treasurer of the county for which the same is received. [L. 1862; D. Cd. § 947; H. C. § 978.]

§ 997. Must File Account with County Treasurer.

He shall, on or before the first Monday in January and July of each year, file in the office of the county treasurer of the proper county an account in writing, verified by his own oath, of all money received by him in his official capacity during the preceding half-year, and shall at the same time pay it over to such county treasurer. [L. 1862; D. Cd. § 948; H. C. § 979.]

$ 998. Action Against Him for Failure to Pay Over Money.

If he refuse or neglect to account for and pay over money so received, as required by the last section, the county treasurer shall commence an action against him therefor in the name of the county. [L. 1862; D. Cd. § 949; H. C. § 980.]

§ 999. When not to Receive Fee or Act as Attorney in Civil Action.

He shall not receive any fee or reward from any private person for his

services in any criminal action, nor during the pendency of such prosecution can he act as attorney for either party in any civil action, suit, or proceeding involving substantially the same controversy. [L. 1862; D. Cd. § 950; H. C. § 981.]

§ 1000. Must Keep a Register and Deliver it to his Successor.

The district attorney must keep a register of his official business, in which he shall make a note of every action, suit, or proceeding commenced or defended by him in his official capacity, and the proceedings therein. The register shall, at the expiration of his term of office, be delivered by him to his successor in office. [L. 1862; D. Cd. § 951; H. C. § 982.]

§ 1001. Annual Report to Secretary of State.

He shall, on or before the first Monday in September of each year, file in the office of the secretary of state a written report of the amount and kind of official business by him transacted during the preceding year; specifying therein the number of persons indicted for public offenses, the number tried therefor, the result thereof, and the punishment awarded, together with such particular statements and suggestions as he may deem useful and interesting. [L. 1862 ; D. Cd. § 952 ; H. C. § 983.]

$ 1002. Court May Appoint Another in his Absence.

If the district attorney fail to attend any court at which he is required to be, or shall be related to the accused by consanguinity or affinity, such court shall appoint another person to perform the duties of such attorney during his absence, or the trial or investigation of such accused, who shall receive the legal fees for the business which he may transact at such time, and a reasonable compensation for his attendance, to be paid from the county treasury upon the order of the court. [L. 1862; D. Cd. § 953; L. 1891, p. 97; H. C. § 984.]



§ 1003. Office of Clerk of Supreme Court, Where Kept and How Furnished. The office of the clerk of the supreme court is kept at the seat of government, in such building or room thercat as such court may by order designate. The rent thereof, and the cost of such fuel, lights, books, and stationery as may be necessary therefor, shall be ascertained and ordered to be paid by such court, from the treasury of the state, in the same manner as the compensation of the crier and bailiffs of such court is ascertained and paid. [L 1862; D. Cd. § 954; H. C. § 985.]

§ 1004. Office of County Clerk, Where Kept.

The office of the county clerk is kept in such building or room at the

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