THE WISCONSIN RULE 91 



owner might recover the highest market value which they 

 had had between the cutting and the trial in whatever 

 form they might have been put by the defendant, or by a 

 purchaser from him with notice of the unlawful cutting. * 

 except where the defendant should file an affidavit, in ac- 

 cordance with provisions of the statute, as to mistake, and 

 support the affidavit by other satisfactory evidence 2 

 The act does not apply where the cutting was done under a 

 bona fide claim of title. 3 It has been held that a conversion 

 was not made in good faith where the defendant knew all 

 the facts but believed that in view of such facts he had a 

 right to take the timber. 4 The statute applies where 

 the cutting was done by an agent, if the defendant upon the 

 discovery of the facts, declines to restore the logs to the 

 owner, 5 and also where the timber cut was not within 

 the terms of a contract held by the defendant for the re- 

 moval of timber. 6 The statute does not apply to an in- 

 nocent purchaser who takes from a trespasser, 7 and notice 

 on the part of the purchaser will not be presumed but must 

 be proven by the plaintiff. 8 It does not apply in actions 

 against the personal representative of the trespasser, or a 

 purchaser from him, from whom only the value of the 

 severed trees can be collected. 9 Thus the Wisconsin 

 courts hold the statute to be punitive in character and ap- 

 plicable only to cases of wilful trespass, and follow what 

 they conceive to be the common law rule in cases of in- 

 nocent trespass. 



1. McNaughton v. Borth, 136 Wis. 543, 117 N. W. 1031; Smith v. Morgan, 73 Wis. 



375, 41 N. W. 532; Arpin v. Burch, 68 Wis. 619, 32 N. W. .681; Schweitzer v. 

 Connor, 57 Wis. 177, 14 N. W. 922; Tuttle v. Wilson, 52 Wis. 643, 9 N. W. 822: 

 Haseltine v. Mosher, 51 Wis. 443, 8 N. W. 273; See, Webster v. Moe, 35 Wis. 75. 



2. Everett v. Gores, 89 Wis. 421, 62 N. W. 82; Smith v. Morgan, 68 Wis. 358, 32 N. 



W. 135; Webber v. Quaw, 46 Wis. 118, 49 N. W. 830; Brown v. Bsosworth, 58 

 Wis. 379, 17 N. W. 241; Cf. Cohen v. Neeves, 40 Wis. 393. 



3. Befay v. Wheeler, 84 Wis. 13i5, 53 N. W. 1121; Fleming v. Sherry, 72 Wis. 503, 



40 N. W. 375. 



4. Warren v. Putnam. 68 Wis. 481, 32 N. W. 533; Cook Land etc. Co, v. Ooonto Co., 



134 Wis. 426, 114 N. W. 823; Smith v. Morgan, 68 Wis. 358, 32 N. W. 135; 

 Fleming v. Sherry, 72 Wis. 5)03, 4O N. W. 375; St. Croix Land etc. Co. v. Ritchie, 

 78 Wis. 492, 47 N. W. 657; See, Smith v. Sherry, 54 Wis. 114, 11 N. W. 465. 



5. Lee v. Lord, 76 Wis. 582). 45 N. W. 601. 



6. Everett v. Gores, 89 Wis. 421. 62 N. W. 82. 



7. Tuttle v. Wilson, 52 Wis. 643, 9 N. W. 822; Wright v. Bolles Woodenware Co., 50 



Wis. 167, 6 N. W. 508. 

 S. Tucker v. Cole, 54 Wis. 539, 11 N. W. 703; Tuttle v. Wilson, 52 Wis. 643; Cf. 



Joseph Dessert Lbr. Co. v. Wadleigh, 103 Wis. 318, 79 N. W. 237. (Constr. St. 



re notice.) 

 9. Cotter v. Plummer, 72 Wis. 476. 40 N. W. 379. 



