The only question presented, which, in the state of the record, we can consider, arises upon the giving of the following instruction:
*31i evidence-degree proof: damases- *30“ The burden of the issue is such as to cast upon the plain*31tiff the burden of proving the facts charged in the petition by competent evidence and to your satisfaction of******* TTg ¡g lint required to prove it, however, beyond a reasonable doubt, and you may find for the plaintiff on less evidence than would be required to convict the defendant if he was on trial charged with the acts as a crime, but you cannot find for the plaintiff unless satisfied from the evidence that defendant set the fire.”
The defendant insists that, as the plaintiff seeks to recover for an act which is a crime, the cause of action must be made out by the same degree of proof as would be necessary to convict the defendant upon an indictment.
The very decided weight of authority seems to favor the position of appellant. In Thayer v. Boyle, 30 Maine, 475, which was trespass for willfully and maliciously burning plaintiff’s barn, the court held that an instruction similar to the one given in this case was erroneous. The court say: “The defendant was charged with having willfully and maliciously done acts constituting an aggravated offense against society and the laws of the land. If prosecuted criminally he was expected to be deprived of his liberty. If held responsible in this form of prosecution, the penalty in way of damages is a sum equal to three times the value of the property destroyed. The effect upon his reputation and standing in the community by a recovery in this case would be, perhaps, very little less than upon conviction for the same on indictment. Until legally proved guilty to the satisfaction of a jury he is shielded by the presumption of innocence. This protection cannot be taken away by evidence establishing only a probability of guilt, however strong that probability may be, if it amounts to nothing more. A preponderance of proof, which does not satisfy the mind, can do nothing further than to render the fact in controversy probable. To dislodge the presumption’of innocence, the plaintiff was bound to satisfy the jury of the truth of the charge. We have seen that this was not done so long as a reasonable doubt remained in their minds. On this branch of the case the instructions *32were not so favorable as the defendant had a right to require.”
In McConnell v. The Delaware Mutual Safety Insurance Company, 18 Illinois, 228, where it became a question whether the assured had burned the insured property, the court, through Catón, J., said: “This question is an important one, for it involves the inquiry as to the guilt or innoceuce of Raney of the crime of arson, in burning his store and stock of goods covered by the policy of insurance, and incidentally of the crime of perjury in swearing to a false protest. In such a case every legal presumption is in favor of his innocence, and we should not, by our finding, pronounce him guilty unless that guilt is clearly established by evidence, excluding or overcoming every fair and reasonable hypothesis of his innocence.”
The following cases hold the same doctrine: Butman v. Hobbs, 35 Maine, 227; Thentell v. Beaumont, 8 Eng. Com. Law, 337.
In Buckmans v. Buckmans, 17 N. J. Equity, 453, it was held that upon a bill for divorce upon the ground of adultery, the complainant must prove the charge to the satisfaction of the court beyond a reasonable doubt. See, also,Warner v. The Commonwealth, 2 Virginia Cases, 105, in. which the court said: “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.”
In Washington Union Ins. Co. v. Wilson, 7 Wisconsin, 169, a doctrine contrary to these cases was announced; but in the subsequent case of Pryce v. Security Ins. Co. of New York, 35 Wisconsin, 270, after a full reference to the authorities, the point was expressly passed without determination. This case may, very fairly, be regarded as somewhat weakening the authority of the former case.
This court has held that where a defendant, in an action of libel, justifies a charge imputing a crime, he must make out his defense beyond a reasonable doubt. Forshee v. Abrams, 2 Iowa, 571; Fountain v. West, 23 Id., 1.
*33It would be difficult to give a satisfactory reason for requiring sucb proof in that case, which does not equally apply to this.
The court erred in giving this instruction.
Eeversed.