We think the affidavit of mistake was sufficient, although made bj? one of the defendants. It was made by one on behalf of both, and in analogy to the law which *383authorizes one of two or more defendants to verify their answers, one of two or more defendants may make the affidavit required by said sec. 4269. The object of the affidavit is to notify the plaintiff that the defendants will rely upon the fact that the timber was cut under a mistake, which, if proved, will relieve them from the larger damages given by the law to the plaintiff. In many cases it might happen that but one of two or more defendants would have any knowledge of the facts which would justify making the affidavit. The others, having-no knowledge upon the subject, it would be unjust to require them to make the oath. The act ought not to be strictly construed in this respect.
The objection that the offer of judgment was insufficient because it did not offer judgment for costs is not well taken. It is true, the statute says the defendant shall offer judgment for the amount of damages tendered, with costs, but it seems to us that the offer that the plaintiff may take judgment for costs in addition to damages is superfluous. When the defendants consent that plaintiff may take judgment against them for $992 damages, it is in effect a consent to judgment for costs in addition to the damages. Under the statute giving costs to the successful party, the plaintiff, upon taking judgment for the damages tendered, would be entitled to have her costs of the action. It does not appear from the record that any objection to the sufficiency of the affidavit, or the offer of judgment, was made on the trial in the circuit court. The case was tried as though a sufficient affidavit and offer had been made, and it is too late to raise the objection for the first time in this court.
The plaintiff, by her counsel, requested the learned judge to instruct the jury as follows:
(1) “ It was the duty of the defendants, when putting their employees at work cutting their own timber, to inform their said employees of the location and boundary lines of their said lands, or else to sufficiently supervise such work so as to prevent said employees trespassing on adjoining *384lands; and if such employees, for want of such information or supervision, committed the trespass alleged in the complaint, then the defendants are estopped from now claiming that such trespass was by mistake.
(2) “ If, in fact, the defendants, or any one of them, did inform and show such employees the locality of defendants’ land, and the boundary line between the plaintiff’s and defendants’ lands, prior to the committing of such trespass, and such employees did thereafter carelessly or heedlessly cross such line, using no care or pains to observe such line on defendants’ or plaintiff’s land, and commit such trespass and cut said plaintiff’s timber, then the defendants cannot now claim that such cutting was by mistake.
(3) “If the jury find that the range line between the plaintiff’s and defendants’ land was plainly blazed or marked, so that the defendants’ employees, by the exercise of ordinary care and attention, must or could have seen such marks, and known they were crossing such range line, then they, as well as the defendants, are to be charged with knowledge that they were trespassing, and cannot now claim that the cutting of the plaintiff’s timber was by mistake.”
These instructions the learned court refused to give, and to such refusal due exception was taken.
The learned judge instructed the jury upon the subject of mistake as follows: “ The important question in this case is whether this was done by mistake or not. If it was a cutting done by design, purposely, knowingly, the plaintiff then is entitled to recover the highest market value or price of the saw-logs taken from the plaintiff’s land, at Stevens Point in the boom.
“ If it was a mistake, if the cutting was done by an accident or mistake, then in this case the defendants having made an affidavit that it was done by mistake, and tendered judgment, then the defendants are liable for the true value of the stumpage on the amount taken.
“ So that it is the important question to ascertain whether *385the cutting was a wilful trespass, — .one done intentionally, or one done inadvertently and by mistake.
“ If it was a wilful and intentional trespass, the plaintiff is entitled to recover the highest-market value of the saw-logs; . . . but if done by mistake and unintentionally, then the plaintiff is only entitled to recover the value of the stumpage, with ten per cent, added to that valuation.
. “What is a mistake? Why, it is the doing of some act unintentionally,— doing some act through a mistake or misapprehension. As, for instance, in this case, if the defendants or their men thought when they were cutting this timber that they were cutting on defendants’ land, that is a mistake.
“It is the distinction between doing a thing knowingly and purposely, and doing % thing ignorantly and without intention of doing it as it was done. It is not a matter of negligence; it is a condition or purpose of the mind.
“Now, you have heard the testimony in this case, and it is for you to determine from it whether this cutting was wilfully, designedly, and purposely, or whether it-was done through a misapprehension,— a mistake as to where the Boundary line was.”
Exceptions were taken by the plaintiff to each paragraph of the charge above quoted.
I have quoted at length from the charge, in order to show that'the learned circuit, judge purposely excluded from the jury all consideration of the carelessness or negligence of the defendants, or their servants and employees, in ascertaining the boundary line between the plaintiff’s and defendants’ land, as bearing upon the questioh of mistake in cutting the timber of the plaintiff, which would relieve the defendants from the payment of the larger damages given by the statute. He, in effect, told the jury that the defendants were under no duty or obligation to the plaintiff to take any care dr use any means to ascertain whether they were cutting *386upon the plaintiff’s land, or to ascertain where their own lines were, and no matter how negligent and careless they were in this respect, if they thought when they cut the timber they were cutting on the defendants’ land, or did not actually know they were cutting on plaintiff’s, then neither the men cutting the timber, nor the persons employing them to do so, would be liable to the plaintiff beyond the stumpage value of the timber cut and carried away. In view of the purpose of the legislature in passing the law which is now found as sec. 4269, R. S., it is very clear to us that the definition given by the learned circuit judge, as to what constitutes a cutting by mistake, under that section, is not the kind of mistake contemplated by the legislature. The occasion of the enactment of the law is a matter of history well understood. In the cases of Weymouth v. C. & N. W. R'y Co., 17 Wis., 550; Single v. Schneider, 24 Wis., 299; Hungerford v. Redford, 29 Wis., 345, this court held that in actions for trespass by cutting and removing timber from the plaintiff’s land, where the cutting and removal were done in good faith by the defendant, he honestly believing that he had the right to cut and remove the same, either because he believed he had title to the lands upon which the same was cut, or that they were cut by mistake as to the lines between plaintiff’s and defendant’s lands, the plaintiff could only recover the stumpage value of the timber cut and removed, and any other damage done to the freehold. But when the case of Single v. Schneider came before this court again in 30 Wis., 570, this court held the plaintiff was limited to the same rule of damages, even though the cutting and taking was knowingly and wilfully done without color or claim of right. This case was decided at the June term, 1872, and the statute which is now found as sec. 4269, R S. 1878, was enacted by the legislature which was convened next after the decision was made. See ch. 263, Laws of 1873.
There can be no doubt that the legislature interfered, and *387established a rule of damages in cases of trespass for cutting timber, which it deemed better for the protection of those owning real estate which was valuable principally for the timber growing thereon, than the rule established by this court in 30 Wis., above cited; but at the same time the legislature recognized the propriety of upholding the rule of damages laid down by this court in cases where the trespasser acted under the belief that he had the right to do the act complained of, or when the trespass was not intentional, but arose out of a mere mistake on his part. So that while the legislature gave the plaintiff as damages, in the case of unlawfully cutting and removing timber from his land, the highest market value of such timber, in whatever place, shape, or condition, manufactured or unmanufactured, the same shall have been at any time before the trial, at the same time, appreciating that such a rule would be oppressive and unjust if enforced against a person who had been acting in good faith, they permitted the trespasser to allege that he did not commit a wilful trespass, but that it was done by a mistake on his part; and if he makes an -affidavit that the trespass was done by mistake, within ten days after he is served with a summons, and offers to let the plaintiff have judgment for the value of the timber cut, with interest added to such value from the time of the cutting to the time of such offer, with ten per centum as further damages upon both such value and interest, he may then set up such mistake as a defense to the larger damages given by the statute, and if he establishes the mistake on the trial, the plaintiff shall be liinited to the value of the timber when cut, with the interest and ten per centum damages added. The legislature have said, if the cutting was done by “mistake” the defendant shall be relieved from responding to the injured party in the greater damages fixed by the statute, and it is for the court to determine what construction shall be given to the word “ mistake” as used in *388the law above cited. This statute has been under the consideration of this court in the following cases: Webster v. Moe, 35 Wis., 75; Brewster v. Carmichael, 39 Wis., 456; Webber v. Quaw, 46 Wis., 118; Wright v. Bolles Wooden Ware Co., 50 Wis., 167; Haseltine v. Mosher, 51 Wis., 443; Tuttle v. Wilson, 52 Wis., 643; Smith v. Sherry, 54 Wis., 114, 130.
In none of these cases have the court considered the real question in the case at bar. In giving construction to the word, we ought to construe it, if consistent with the language used, so as to uphold the purpose of the legislature rather than to defeat it. To give it the construction given by the learned circuit judge, and which is contended for by the learned counsel for the respondents, would, we think, defeat the very purpose of the statute. If a trespasser can avoid the larger damages given by the statute bjr simply neglecting to take any precaution to ascertain whether he is cutting upon his own land or upon the land of his neighbor, and avoid the effect of the statute by alleging such want of precaution on his part, it will open a wide door for those who are disposed to despoil their neighbor’s land of the growing timber to do so and avoid the damages given by the statute. Every person who cuts timber upon his own land, or who intends so to do, owes a duty to the adjoining owner to ascertain the boundary line of the adjoining lands, if he can with reasonable diligence and care, so as to avoid trespassing upon such adjoining land; and if he neglects' such duty, and recklessly, negligently, and carelessly cuts beyond his own premises, he cannot be said to have done so by mistake, but jby reason, of his carelessness and negligence. If the person cutting the timber was under no obligation of duty to the adjoining owners to avoid cutting upon their lands, and he heedlessly, carelessly, and negligently cut upon such adjoining lands, there might be some plausibility in holding that such cutting would come within the meaning of “ mistake ” *389in the statute. In order to establish that the cutting was by mistake within the meaning of the statute, the defendant must show some degree of good faith upon his part, as was said by this court in the cases above cited, and decided previous to the case in 30 Wis. He cannot neglect a duty which he owes to his neighbor, and which neglect is in itself an act of bad faith, and still claim the benefit of a mistake under the statute. We are aware that a court of-equity will some-; times relieve a party from a mistake made, and which occurred from the mere forgetfulness of the party alleging the mistake, but we think no case can be found where a court of equity has relieved a party on account of a mistake which was made through the mere carelessness and negligence of the party asking relief, when there rested a duty upon him towards the other party to use due care and diligence not to make such mistake. This question was very fully discussed by Chief Justice DixoN in Hurd v. Hall, 12 Wis., 112, 139, 140, and the conclusion arrived at was that a court of equity will relievp against a mistake when it is clearly established “ that there is a clear bona fide mistake, ignorance, or forgetfulness of facts;” “that mere ignorance or forgetfulness of facts, without intentional neglect to examine them, excuses the party and he may be relieved.” Many cases were cited and commented upon by the learned chief justice in his opinion, and no case is cited which- tends to show that a court of equity would relieve a party bn account of an alleged mistake which arose from the negligence and carelessness of the party asking relief, when there was a duty resting upon him. in favor of the other party, and which duty he neglected to perform by reason of his carelessness.
If a person cuts timber upon his own land, and while doing so carelessly and heedlessly cuts across the line upon his neighbor’s land, such carelessness is a neglect of his duty, and is evidence of a want of good faith on his part, *390and be cannot invoke such careless and heedless act as a mistake, under the provisions of said sec. 4269, R. S.
We think the second and third instructions asked by the appellant should have been given to the jury, and that the court erred in the instructions given, especially in instructing the jury that the question of negligence was not in the case.
The learned counsel for the respondents argued in this court that his clients were not responsible for the acts of the parties who cut the timber in question, for the reason that they cut the same under a contract which gave them the entire control of the cutting, and therefore the relation of master and servant or employee did not exist between his clients and the persons who did the cutting. We cannot consider that question upon this appeal, as it clearly appears from the record that no such question was raised in the court below, and the affidavit and answer of the defendants both allege that the timber was cut by their servants and employees, and the whole record shows that the case was 'tried upon that theory alone, and not upon the theory that the persons cutting the timber were acting as independent contractors.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.