$335. Trespass for etc. § 338. [335.] Whenever any person shall cut down, Oct. 11, 1862, girdle, or otherwise injure, or carry off, any tree, timber, or shrub on the land of another person, or on the street or cutting trees, highway in front of any person's house, village, town or city lot, or cultivated grounds, or on the commons. 18 Or. 186. or public grounds of any village, town, or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town, or city, against the person committing such trespasses, or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages. claimed, or assessed therefor, as the case may be. Trespass for cutting trees, etc. -The statute was not intended to apply to cases in which the trespass was committed through an innocent mistake as to the boundary or location of a tract of land claimed by the defendant: See the next section; Barnes v. Jones, 51 Cal. 303; Batchelder v. Kelly, 10 N. H. 436; S. C., 34 Am. Dec. 174; Russell v. Irby, 13 Ala. 131; Perkins v. Hackelman, 26 Miss. 41; S. C., 59 Am. Dec. 243; Whitecraft v. Vanderver, 12 Ill. 235. When the plaintiff seeks to recover treble damages under this section in an action, he should so state in his complaint and demand judgment therefor, so that defendant may be apprised of the claim; and the facts stated must bring the claim within the statute: Neff v. Pennoyer, 3 Saw. 495. Defendant may then defend by specially pleading any of the causes mentioned in the next section: Neff v. Pennoyer, supra. $336. Same. Intent. 3 Saw. 495. 18 Or. 186. 15 Or. 171. § 339. [336.] If upon the trial of such action, it Oct. 11, 1862, shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from uninclosed woodland, for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages. See the note to the preceding section TITLE III. ACTIONS ON OFFICIAL UNDERTAKINGS, AND FOR FINES § 340. Official undertakings, to whom deemed a security. § 341. Who may maintain action thereon. § 342. When leave must be obtained before action can be commenced. § 343. Judgment no bar to action for another delinquency. § 344. Judgment cannot be given against surety for more than the amount § 345. § 346. § 347. $348. Actions for penalties not to exceed certain amount. Oct, 11, 1862, 9 837. Official bonds, to whom deemed security. 6 Or. 171. Oct. 11, 1862, $338. Who may sue thereon. 15 Or. 171. Oct. 11, 1862. $339. Leave to commence action. 6 Or. 290. § 340. [337.] The official undertaking or other security of a public officer to the state, or to any county, city, town, or other municipal or public corporation of like character therein, shall be deemed a security to the state, or to such county, city, town, or other municipal or public corporation as the case may be, and also, to all persons severally for the official delinquencies, against which it is intended to provide. Lost undertaking. Where an official undertaking has been lost, so that no copy can be obtained, a person damaged by delinquency of the officer may sue in equity to establish the bond and obtain leave to sue on it: Howe v. Taylor, 6 Or. 284. § 341. [338.] When a public officer by official misconduct or neglect of duty shall forfeit his official undertaking or other security, or render his sureties therein. liable upon such undertaking or other security, any person injured by such misconduct or neglect, or who is by law entitled to the benefit of the security, may maintain an action at law thereon in his own name, against the officer and his sureties, to recover the amount to which he may by reason thereof be entitled. § 342. [339.] Before an action can be commenced by a plaintiff other than the state, or the municipal or public corporation named in the undertaking or other security, leave shall be obtained of the court or judge thereof where the action is triable. Such leave shall be granted upon the production of a certified copy of the undertaking or other security, and an affidavit of the plaintiff or some person on his behalf showing the delinquency. But if the matters set forth in the affidavit be such that, if true, oct. 11, 1862, $339. the party applying would clearly not be entitled to recover Leave to comin the action, the leave shall not be granted. If it does mence action. not appear from the complaint that the leave herein provided for has been granted, the defendant on motion shall be entitled to judgment of nonsuit; if it does, the defendant may controvert the allegation, and if the issue be found in his favor, judgment shall be given accordingly. See note to § 340 [337]. $340. Judgment no § 343. [340.] A judgment in favor of a party for one Oct. 11, 1862, delinquency shall not preclude the same or another party from maintaining another action on the same under- bar to action taking, or other security for another delinquency. See § 2229, Miscellaneous Laws. for further delinquency. § 341. Amount of § 344. [341.] In an action upon an official undertak- Oct. 11, 1862, ing or other security, if judgments have already been recovered against the surety therein, other than by judgment. confession, equal in the aggregate to the penalty or any part thereof of such undertaking or other security, and if such recovery be established on the trial, judgment shall not be given against such surety for an amount exceeding such penalty, or such portion thereof, as is not already recovered against him. $342. Actions for $345. [342.] Fines and forfeitures may be recovered Oct. 11, 1862, by an action at law in the name of the officer or person to whom they are by law given, or in the name of the fines and forofficer or person who by law is authorized to prosecute for them. Bail bond. Under this and the following sections the district attor ney sues as plaintiff in his own name: feitures. 6 Or. 471. § 343. Amount of § 346. [343.] When an action shall be commenced Oct. 11, 1862, for a penalty, which by law is not to exceed a certain amount, the action may be commenced for that amount, recovery. and if judgment be given for the plaintiff, it may be for 15 Or. 175. such amount or less, in the discretion of the court, in 17 Or. 459. proportion to the offense. Oct. 11, 1862, $ 344. Judgment by tween plaintiff § 347. [344.] A recovery of a judgment for a penalty or forfeiture by collusion between the plaintiff and decollusion be fendant, with intent to save the defendant, wholly or and defendant. partially, from the consequences contemplated by law, in case where the penalty or forfeiture is given wholly or partly to the person who prosecutes, shall not bar the recovery of the same by another person. 17 Or. 458. Oct. 11. 1862, $345. Disposition of feitures. § 348. [345.] Fines and forfeitures not specially granted or otherwise appropriated by law, when recovfines and for- ered, shall be paid into the treasury of the proper county. Whenever, by the provisions of law, any property, real or personal, shall be forfeited to the state, or to any officer for its use, the action for the recovery of such property may be commenced in any county where the defendant may be found, or where such property may be. Oct. 11, 1862, 346. Actions by rations. TITLE IV. ACTIONS BY AND AGAINST PUBLIC CORPORATIONS AND OFFICERS. § 349. How actions may be maintained by public corporations, and for what § 350. Actions against public corporations, and what causes. § 353. Actions by and against public officers, when maintained, and for what causes. § 349. [346.] An action at law may be maintained by any county, incorporated town, school district, or public corpo- other public corporation of like character in this state in its corporate name, and upon a cause of action accruing to it in its corporate character, and not otherwise, in either of the following cases: 5 Or. 244. 1. Upon a contract made with such public corporation; 2. Upon a liability prescribed by law in favor of such public corporation; 3. To recover a penalty or forfeiture given to such public corporation; $346. 4. To recover damages for an injury to the corporate Oct. 11, 1862, rights or property of such public corporation. against public 3 Or. 424. § 350. [347.] An action may be maintained against Feb. 21, 1887. any of the organized counties of this state upon a con- Actions tract made by such county in its corporate character, corporations. and within the scope of its authority, and not otherwise. And an action may be maintained against any of the Or.2310. other public corporations in this state mentioned in section 349 [346], in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such other public corporation. County as party: See § 897 [871]. fective way: Sheridan v. Salem, 14 348. How pleadings § 351. [348.] In such actions the pleadings of the Oct. 11, 1862, public corporation shall be verified by any of the officers representing it in its corporate capacity, in the same verified. manner as if such officer were a defendant in the action, or by the agent or attorney thereof, as in ordinary actions. S49. § 352. [349.] If judgment be given for the recovery Oct. 11, 1862, of money or damages against a county or other public corporation, mentioned or described in section 349 [346], How judgment no execution shall issue thereon for the collection of such money or damages, but such judgment in such respect shall be satisfied as follows:— 1. The party in whose favor such judgment is given may, at any time thereafter, when an execution might issue on a like judgment against a private person, present a certified transcript of the docket thereof, to the officer of such county or other public corporation who is authorized to draw orders on the treasurer thereof. 2. On the presentation of such transcript, such officer shall draw an order on such treasurer for the amount of the judgment, in favor of the party for whom the same was given. Thereafter, such order shall be presented for payment, and paid, with like effect and in like manner. as other orders upon the treasurer of such county or other public corporation. |