It would seem that counsel for the defendant is right in the construction put by him upon sec. 7, ch. 72, R. S., and that it was only against insurance companies incorporated by some “foreign government,” and not against those incorporated by “other states,” that the commencement of suit by petition filed with the clerk of the circuit court, was authorized; and only against such companies, also, that the twenty-five per cent, damages, in addition to the actual amount of loss and interest, for the detention thereof, with costs, were to be assessed. But whether such be the true construction or not is immaterial in'the present case, since the defendant appeared and answered the complaint, which waived all irregularities in the commencement of-the action; and since, also, the above mentioned statute, which directed the damages to be assessed, was repealed before any assessment was had in this case.
Such repeal was effected by sec. 38, ch. 56, Laws of 1870 *275passed and approved March. 14, 1870, and published March 20, 1870, from which last date it took effect.and was in force .as law. The trial of this cause was had, and yerdict rendered in favor of the plaintiff , for. the sum actually due .upon the policy, with interest, on the 10th day of March, 1870; but .no assessment of the twenty-five per cent damages was made by the court until the 23d day of the .same month, which was one day after the statute, under which the court professed .to act, was repealed. Such damages constituted no part of. the contract, and were recoverable only by force of the statute which gave them. They were to be assessed by the court after .verdict for the plaintiff, or, in the language of the. statute, “ in case judgment was rendered for the petitioner”; .and it seems clear that the plaintiff had no vested right in them until they were actually assessed in her favor. But, when the supposed assessment was made, there was no statute giving them, and consequently no authority for the proceeding. The case was like the repeal or modification of a statute giving costs, pending a suit where the rights of the suitor to costs would be governed by the law in force at the time he obtained judgment, or when his costs were taxed. It is furthermore true, that the damages here sought were in the nature of a penalty, and penal laws are strictly construed. The rule is familiar,. that, after the repeal of a penal statute, no judgment can be rendered for.the penalty; and this is so even where -the repeal takes.place after yerdict, and before judgment has been formally pronounced.
The instruction which was asked by the defendant, and. refused by the court, was, we think, .properly refused, .because there was no evidence in the case to which it was .applicable. The evidence was clear and uncontradicted that the alleged verbal contract to sell, referred to in the instruction, .was abandoned before Lombard entered into possession. Lombard, whose testimony alone was relied upon to show the verbal contract, himself distinctly so testified, and that “there was an understanding that I was to pay no rent for the place until the *276money was paid back. When I went in, I did not do it claiming to own the place.” This was an end of the alleged verbal contract, and there was nothing for the jury to consider in relation to Lombard’s supposed rights under it.
Exception was taken to that part of the charge in which the court said: “ But the defendant claims that there are suspicious circumstances attending upon the burning. What these circumstances are, you will remember. I do not think there is much proof in that direction. The last sentence was regarded as particularly exceptionable; but, concurring, as we do, in the entire correctness of the remark, we cannot think of criticising the court below for having made it
And for the same reason, namely, because there was no evidence upon which a jury could have found that the plaintiff set fire to the building herself, or caused or procured it to be set on fire and destroyed, we are of opinion that it is immaterial whether the court was right or wrong in giving the instruction asked by the plaintiff in relation to the degree or quantum of proof required to establish such fact. That instruction was as follows: “ The defendant, in making the defense that the property was destroyed by the act of the plaintiff, is bound to establish the fact that she set the fire by evidence which is equal in strength to the testimony of one credible witness swearing to the fact.” No less testimony should be taken by you as establishing the fact. This instruction may perhaps be considered as in conflict with the decision of this court in Washington Union Ins. Co. v. Wilsons, 7 Wis., 169, where it was held, upon such defense, that the rule of evidence was not, as on an indictment for arson that the jury must be satisfied of the guilt of the party beyond a reasonable doubt.
Other courts have held differently, and that the same degree of proof is required to sustain the defense as would be required to procure a conviction under an indictment for the same offense. McConnell v. The Delaware M. S. Ins. Co.; 18 Ill., 228 ; Butman v. Hobbs, 35 Maine, 227; Thayer v. Boyle, 30 Maine, 745; Thar*277tell v. Beaumont, 1 Bing., 339; [8 E. C. L., 337.] See also Adams v. Carlisle, 21 Pick., 146. The rule of the latter cases is approved by Mr. Greenleaf, who cites several authorities. 1 Greenl. Ev., § 65. And the same doctrine has been held in numerous cases, differing in character though not in principle, as upon questions of legitimacy, marriage, and divorce on the ground of adultery. Clayton v. Wardell, 5 Barb., 216, 217; Mears v. Wells, 12 Met., 361; Berckmans v. Berckmans, 17 N. J., Eq. R. (2 C. E. Green), 453 ; Warner v. The Commonwealth, 2 Virginia Cases, 105; Starr v. Peck, 1 Hill, 272; Lord Melville's Case, 29 Howell St. Tr., 764. In the last case, Lord Chancellor Eeskine says: “A fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence.” And in 2 Virginia Cases, 105, the court say: It cannot be contended, that, when the same fact comes in dispute in a civil and criminal case, the law requires other and different evidence to establish such fact in one case from what it requires to establish the fact in the other. The law is not, and ought not to be so.” And in Clayton v. Wardell the court held that the same presumption against the commission of crime prevails in civil as in criminal cases, saying that,' according to every rule of sound reasoning, such presumption ought to be invoked, equally in favor of any person who makes a claim which can only be defeated by assuming that a crime has been committed.” And in Berckmans v. Berckmans the decision was, that, upon a bill for divorce on the ground of adultery, the complainant must not only show a decided preponderance of evidence in support of the charge, but must prove it to the satisfaction of the court beyond a reasonable doubt.
But, whatever the true rule of evidence may be, it is manifest, for the reason above stated, that the defendant could not have been prejudiced by the instruction here given, and that, although the same may have been erroneous.
It follows from these views that there was no error in the proceedings and judgment in the court below, except that part *278of them awarding the twenty-five per cent damages, which are separately stated and included in the judgment at the sum of eighty-seven dollars and fifty cents. As to that sum, therefore, the judgment should be reversed, with costs of appeal to be taxed against the plaintiff. The judgment in all other respects, being correct, should be affirmed.
By the Court — It is so ordered.