the English race, it is not new in the constitutional history of this country, and it was not new in the Constitution of the United States when it became a part of the fourteenth amendment in the year 1866.

The equivalent of the phrase "due process of law," according to Lord Coke, is found in the words "law of the land," in the great charter, in connection with the writ of habeas corpus, the trial by jury, and other guarantees of the rights of the subject against the oppression of the crown. In the series of amendments to the Constitution of the United States, proposed and adopted immediately after the organization of the government, which were dictated by the jealousy of the States as further limitations upon the power of the Federal government. it is found in the fifth, in connection with other guarantees of personal rights of the same character. Among these are protection against prosecutions for crimes unless sanctioned by a grand jury, against being twice tried for the same offense, against the accused being compelled, in a criminal case, to testify against himself, and against taking private property for public use without just compensation.

Most of these provisions, including the one under consideration, either in terms or in substance, have been embodied in the Constitutions of the several States, and in one shape or another have been the subject of judicial construction.

It must be confessed, however, that the constitutional meaning or value of the phrase "due process of law," remains to-day without that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the Constitutions of the several States and of the United States.

It is easy to see that when the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by "law of the land" the ancient and customery laws of the English people, or laws enacted by the Parliament of which those barons were a controlling element. It was not in their minds, therefore, to protect themselves against the enactment of laws by the Parliament of England. But when in the year of grace 1866 there is placed in the Constitution of the United States a declaration that "no State shall deprive any person of life, liberty or property, without due process of law," can a State make any thing due process of law which by its own legislation it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail or has no application where the invasion of private rights is effected under the forms of State legislation. It seems to us that a statute which declared in terms, and without more, that the full and exclusive title of a described piece of land, which is now in A, shall be and is hereby vested in B, would, if effectual, depose A of his property without due process of law, within the meaning of the constitutional provision.

A most exhaustive judicial inquiry into the meaning of the words "due process of law," as found in the fifth amendment, resulted in the unanimous decision of this court that they do not necessarily imply a regular proceeding in a court of justice, or after the manner of such courts. Murray v. Hoboken Land Co., 18 How. 272. That was an action of ejectment, in which both plaintiff and defendant asserted title under

Samuel Swartwout-the plaintiff by virtue of an execution, sale, and deed, made on a judgment obtained in the regular course of judicial proceedings against him, and the defendant by a seizure and sale by a marshal of the United States, made under a distress warrant issued by the solicitor of the treasury, under the act of Congress of May 20, 1820.

When an account against an officer who held public money had been adjusted by the proper auditing officer of the treasury, and the party was found indebted, and neglected or refused to pay, that statute authorized the solicitor of the treasury to issue a distress warrant to the marshal of the proper district, which from the date of its levy and the record thereof in the District Court, should be a lien on the property on which it was levied for the amount due, and made it the duty of the marshal to collect the amount by sale of said property or that of the sureties on his official bond. It was urged that these proceedings deprived Swartwout of his property without due process of law. "The objections," says the court, “raise the questions whether, under the Constitution of the United States, a collector of the customs, from whom a balance of account has been found to be due by accounting officers of the treasury, designated for that purpose by law, can be deprived of his liberty or property in order to enforce payment of that balance without the exercise of the judicial power of the United States, and yet by due process of law, within the meaning of those terms in the Constitution; and if so, secondly, whether the warrant in question was such due process of law?"

The court held that the power exercised was executive, and not judicial, and that the issue of the writ and proceedings under it were due process of law within the meaning of the Constitution. The history of the English mode of dealing with public debtors and enforcing its revenue laws is reviewed with the result of showing that the rights of the crown in these cases had always been enforced by summary remedies, without the aid of the usual course of judicial proceedings, though the latter were resorted to in the Exchequer Court when the officers of the government deemed it advisable. And it was held that such a course was due process of law within the meaning of that phrase as derived from our ancestors and found in our Constitution.

It is not a little remarkable that while this provision has been in the Constitution of the United States as a restraint upon the authority of the Federal government for nearly a century, and while during all that time the manner in which the powers of that government have been exercised has been watched with jealousy and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum of the more enlarged theater of public discussion. But while it has been a part of the Constitution as a restraint upon the power of the States only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the fourteenth amendment. In fact it would seem from the character of many of the cases before us and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test

of the decision of this court, the abstract opinions of every unsuccessful litigant in a State court, of the justice of the decision against him and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law.

But apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded. This court is, after an experience of nearly a century, still engaged in defining the obligation of contracts, the regulation of commerce, and other powers conferred on the Federal government or limitations imposed upon the States.

As contributing to some extent to this mode of determining what class of cases do not fall within its provision, we lay down the following proposition as applicable to the case before us.

That whenever by the laws of a State, or by State authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be of the whole State or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.

It may violate some provision of the State Constitution against unequal taxation, but the Federal Constitution imposes no restraints on the States in that regard. If private property be taken for public uses without just compensation, it must be remembered that when the fourteenth amendment was adopted, the provision on that subject in immediate juxtaposition in the fifth amendment with the one we are construing was left out, and this was taken. It may possibly violate some of those principles of general constitutional law which, if we were sitting in review of a Circuit Court of the United States, as we were in the Topeka Case, 20 Wall. 655, we could take jurisdiction of. But however this may be, or under whatever other clause of the Federal Constitution we may review the case, it is not possible to hold that where by the laws of the State the party aggrieved has, as regards the issues affecting his property, a fair trial in a court of justice, according to the modes of proceeding applicable to such case, that he has been deprived of that property without due process of law. This was clearly stated by this court, speaking by the Chief Justice, in the case of Kennard v. Morgan, 92 U. S. 480, and repeated in substance in the case of McMillan v. Anderson, at the present term.

This proposition covers the present case. Before the assessment could be collected or become effectual, the

statute required that the tableau of assessments should be filed in the proper District Court of the State, that personal service of notice with reasonable time to object should be served on all owners who were known and within reach of process, and due advertisement made as to those who were unknown, or could not be found. This was complied with, and the party complaining here appeared and had a full and fair hearing in the court of the first instance, and afterward in the Supreme Court. If this be not due process of law, then the words can have no definite meaning as used in the Constitution.

One or two errors assigned and not mentioned in the earlier part of this opinion deserve a word or two.

It is said that plaintiff's property had previously been assessed for the same purpose and the assessment paid. If this be meant to deny the right of the State to tax or assess property twice for the same purpose, we know of no provision in the Federal Constitution which forbids this or which forbids unequal taxation by the States. If the act under which the former assessment was made is relied on as a contract against further assessments for the same purpose, we concur with the Supreme Court of Louisiana in being unable to discover such a contract.

It is said that part of the property of plaintiff assessed is not benefited by the improvement. But this is a matter of detail with which this court cannot interfere if it were clearly so, but it is hard to fix a limit within these two parishes where property would not be benefited by the removal of the swamps and marshes which are within their bounds.

And lastly and most strongly it is urged that the court rendered a personal judgment against the owner for the amount of the tax, while it also made it a charge upon the land. It is urged with force, and some highly respectable authorities are cited to support the proposition, that while for such improvements as this a part or even the whole of a man's property connected with the improvement may be taken, no personal liability can be imposed on him in regard to it. If this were a proposition coming before us sitting in a State court, or perhaps in a Circuit Court of the United States, we might be called upon to decide it, but we are unable to see that any of the provisions of the Federal Constitution authorizes us to reverse the judgment of a State court on that question. It is not one which is involved in the phrase, "due process of law," and none other is called to our attention in the present case.

As there is no error in the judgment of the Supreme Court of Louisiana, of which this court has cognizance, it is affirmed.

Mr. Justice BRADLEY. In the conclusion and general tenor of the opinion just read, I concur. But I think it narrows the scope of inquiry as to what is due process of law more than it should do.

It seems to me that private property may be taken by a State without due process of law in other ways than by mere direct enactment or the want of a judicial proceeding. If a State, by its laws, should authorize private property to be taken for public use without compensation (except to prevent its falling into the hands of an enemy, or to prevent the spread of a conflagration, or in virtue of some other imminent necessity where the property itself is the cause of the public detriment), I think it would be depriving a man of his property without due process of law. The exceptions noted im

ply that the nature and cause of the taking are proper to be considered. The distress-warrant issued in the case of Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272, was sustained because it was in consonance with the usage of the English government and our State governments in collecting balances due from public accountants; and hence was "due process of law." But the court in that case expressly holds that "it is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as the executive and judicial power of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will." (p. 276.) I think, therefore, we are entitled, under the fourteenth amendment, not only to see that there is some process of law, but "due process of law," provided by the State law when a citizen is deprived of his property; and that in judging what is " due process of law" respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these: and if found to be suitable or admissible in the special case, it will be adjudged to be "due process of law:" but if found to be arbitrary, oppressive and unjust, it may be declared to be not "due process of law." Such an examination may be made without interfering with that large discretion which every legislative power has of making wide modifications in the forms of procedure in each case, according as the laws, habits, customs, and preferences of the people of the particular State may require.

PROOF OF WILLFUL BURNING IN ACTIONS FOR INSURANCE MONEY.

COURT OF ERRORS AND APPEALS OF NEW JERSEY, NOVEMBER TERM, 1877.

KANE V. THE HIBERNIA INSURANCE COMPANY. In an action on a policy of insurance against loss by fire, where the defense is that the property was willfully burned by the assured, the rule in civil, and not in criminal cases, as to the quantum of proof, applies, and a charge to the jury that the defendant is bound to establish the defense beyond a reasonable doubt, and by the same measure of proof that would be necessary to convict the plaintiff if he was on trial upon an indictment charging that offense, is erroneous. Thurtell v. Beaumont, 8 J. B. Moore, 612; 1 Bing. 339, disapproved.*

ΟΝ

error to the Supreme Court. Kane brought an action of assumpsit against the insurance company on two policies of insurance (not under seal), against loss by fire. The defense was that the building insured was burned by design, with the knowledge and procurement of the plaintiff.

The defendant's counsel asked the court to charge the jury that, as to the defense of burning by design, while the burden of proof was on the defendant to establish this defense, it was only necessary to do so by the fair weight or preponderance of the evidence. The court refused so to charge, and charged the jury that, in order to make out such defense, the defendant was bound to establish the same beyond a reasonable doubt, and by the same measure of testimony that would be necessary to convict the plaintiff if tried under an indictment charging that offense.

*See reference to recent cases on this subject, 15 Alb. Law Jour. 444.

The question of the correctness of this instruction was reserved and heard before the Supreme Court. Kane v. Hibernia Insurance Company, 9 Vroom, 441. The decision of the Supreme Court being adverse to the defendants, the case was removed by them to this court, by writ of error, on exceptions sealed at the trial.

For the plaintiff in error, Joseph Coult and H. C. Pitney.

Contra, F. Voorhees and J. C. Ten Eyck. The opinion of the court was delivered by DEPUE, J. The writ of error brings up for review the propriety of the judge's charge.

It is conceded that there is a difference between civil and criminal cases in respect to the degree or quantity of evidence necessary to determine the verdict of a jury. In civil cases it is the duty of the jury to find for the party in whose favor the evidence preponderates; but in criminal cases, the accused should not be convicted upon any preponderance of evidence unless it generates full belief of the fact, to the exclusion of all reasonable doubt. 3 Greenl. Ev., § 29; Best on Ev., § 95. But it is contended that there is an exception to this general rule, where the issue in a civil case is one in which crime is imputed, and the guilt or innocence of a party is directly or incidentally involved. In such cases, it is said that the presumption of innocence is to have as great effect as in criminal trials, and that to justify a verdict against the party to whom crime is imputed, the evidence adduced must be such as would be sufficient to convict upon an indictment for the crime imputed. 2 Greenl. Ev., §§ 408, 426; 1 Taylor on Ev., 97, a.

This exception is most frequently invoked in actions of libel and slander, where a justification imputing crime is pleaded, and actions on fire policies, where the defense is that the property was willfully burned by the insured.

Actions of libel and slander on an issue upon such a justification, as civil actions, may be regarded as exceptional in character. A defendant in such an action, if he was warranted in giving publicity to the defamatory words by the occasion of publishing or uttering them, may discharge himself if he shows by a preponderance of evidence that the occasion was such as to make the communication a privileged communication. But if he published or uttered the defamatory words under other circumstances, in doing so he was a mere volunteer, without any personal or private interest in the subject-matter. In putting his justification on the ground of the plaintiff's guilt of the accusation, he undertakes to prove the plaintiff's guilt, which comprises not only the doing of the act, but also the intent, which the law denounces as criminal. As a matter of pleading, he is bound to plead with precision, a justification as broad as the accusation attempted to be justified, and containing all the ingredients necessary to the commission of the crime: and as a question of evidence, he is bound to make his proof co-extensive with the averments in his plea. Under such circumrequire the truth of the accusation to be established by stances, it is neither impolitic nor unreasonable to the same degree of proof as is required on the trial of an indictment. The mistake is in overlooking the exceptional character of this class of actions, and deducing from them a rule of evidence, to be applied in other civil cases, for the enforcement of contracts or the recovery of damages for injuries to the person or property, where the presence of the crime, if it appear

in the facts relied on to make a case or a defense, is wholly fortuitous. The distinction between cases where the commission of crime is directly in issue, and where it is only incidentally involved, is recognized by Mr. Stephen in his excellent summary of the law of evidence. In cases where crime is directly in issue, the author states the rule to be, that the proof must be beyond a reasonable doubt, whether the action be civil or criminal; but where the guilt arises only incidentally in a case, he regards it as determining merely the burden of proof. Stephen on Ev., art. 94, p. 115.

In an action on a contract of insurance, a defense that the loss was caused by the willful' act of the assured, does not necessarily involve a criminal accusation. It rests upon the legal maxim that no man shall be permitted to derive advantage from his own wrong. "It is," says Lord Campbell, C. J., "a maxim of our insurance law, and of the insurance laws of all commercial nations, that the assured cannot seek indemnity for a loss produced by his own wrongful act." Thompson v. Hopper, 6 E. & B. 171, 196. In that case, which was an action on a marine policy, a plea that the plaintiffs knowingly, willfully and improperly sent the ship to sea at a time when it was dangerous for her to go to sea in the state and condition in which she then was, and wrongfully and improperly caused and permitted the ship to be and remain on the high seas, near to the shore, in the state and condition aforesaid, without a master and without a proper crew to manage and navigate her, etc., and that the ship, by reason of the premises, was wrecked, was held to disclose a good defense. In delivering the judgment of the court, Lord Campbell said, "according to the statement in this plea, the plaintiffs' loss was caused by their wrongful act, and, if so, I think there was no necessity to characterize it as being either felonious or fraudulent." Knowledge and willfulness and a loss resulting directly and immediately from such wrongful act, are the essential elements of such a defense. Dudgeon v. Pembroke, L. R., 9 Q. B. 581; 1 Q. B. Div. 96; 2 App. Cas. 284; Thompson v. Hopper, E., B. & E. 1038.

Under a fire policy, the assured may recover for a loss occasioned by mere carelessness, without fraud or willful misconduct. But to make defense to the action, the defendants need not prove that the plaintiff had committed an indictable offense. It is sufficient if it be shown that the plaintiff purposely and wantonly set fire to the property insured. Schmidt v. N. Y. U. M. F. Ins. Co., 1 Gray, 529. At common law, and independently of the act of 1859 (Rev., p. 242), a man might burn his own house without incurring liability to indictment, unless it was so situated with respect to the houses of others as to endanger their safety. 2 East's Pl. 1027, § 7; 1034, § 11; State v. Fish, 3 Dutcher, 323. After the act of 1859 became a law, a man might still, without criminal responsibility, burn his own house, if it was done without intent to prejudice the insurance thereon. Indeed, cases may arise where the assured may procure the destruction by fire of his property, with intent to defraud the insurer, and not be liable to indictment under the statute. Criminal laws are essentially local in their operation, and the incitement in a foreign jurisdiction to the commission of a crime in this State, is not indictable under our laws. Therefore, one who, in another State, procures another to enter this State and commit a crime, is not guilty of any offense punishable by the laws of this

State. State v. Wyckoff, 2 Vroom, 65. And yet it cannot be doubted that, before the act of 1859, an insurance company might successfully defend on the ground that the assured willfully caused the destruction of the property insured, and that such defense may be made where the assured is so circumstanced as not to be indictable under the statute. A contract for indemnity in such case would be absurd, and, so far as it related to a voluntary and intended loss, would be void in law. 1 Phillips' Ins., § 1046.

The doctrine that, in an action on a policy, the defense that the plaintiff had willfully set fire to the premises must be as fully and satisfactorily proved as if the plaintiff were on trial on indictment, originated in the case of Thurtell v. Beaumont, 8 J. B. Moore, 612; 1 Bing. 339. This ruling is adopted by Mr. Greenleaf and Mr. Taylor, and is strongly approved by the latter writer. 2 Greenl. Ev., § 418; 1 Taylor's Ev. (5th ed.) 9%, a. It is disapproved by Mr. Wharton, and is vigorously assailed by Mr. May, the author of May on Insurance, in an article in the American Law Review. 2 Whart. Ev., § 1246; 10 Ani. Law Rev. 642.

The decision on this point, in Thurtell v. Beaumont, was made on an application for a rule, and without much consideration. It has never received approval in the English courts, although, as a rule of evidence, occasions have repeatedly arisen for its adoption and application. The cases decided upon the English Carriers' Act (11 Geo. IV, and 1 Wm. IV, ch. 68), and the Bribery Act (17 and 18 Vict., ch. 102), are cases in which a rule requiring the same measure of proof in civil as in criminal cases, where the facts in support of a civil liability would tend to establish a criminal charge, would be expected to be applied, if any such rule existed.

The Carriers' Act relieves a carrier from responsibility for the loss of or injury to goods in certain cases, unless the loss or injury arose from the felonious acts of his servants. In several cases the question has been before the English courts, whether the evidence was sufficient to bring the case within this exception. G. W. Railway Co. v. Rimell, 18 C. B. 575; Metcalfe v. L. & B. & S. C. R. Co., 4 C. B. (N. S.) 307; Vaughton v. L. & N. W. R. Co., Law Rep., 9 Exch. 93; McQueen v. G. W. R. Co., Law Rep., 10 Q. B. 569. In none of these cases was Thurtell v. Beaumont cited, or any reference made to the necessity of establishing the issue by the weight of evidence required in criminal cases. On the contrary, it is apparent, from the observations of the judges, that the issue was treated of as one to be determined by the simple weight of evidence, as in other civil cases.

By the Bribery Act (17 and 18 Vict., ch. 102), it was provided that any person who, directly or indirectly, by himself, or any other person, in his behalf, should give or promise any money, etc., to any voter, to induce him to vote, etc., should be guilty of a misdemeanor, and should also be liable to forfeit the sum of £100 to any person who should sue for the same.

In Cooper v. Slade, reported in 6 E. & B. 447, and in 6 H. of L. Cas. 746, the action was for a penalty under this act. The judge (Baron Parke), at the trial, charged the jury that if they were satisfied, upon the evidence, that the defendant did, by himself, or 'any other person on his behalf, promise money to the voter to induce him to vote, they ought to find for the plaintiff. This direction was held, by the House of Lords, to be a right direction. On the review, the case was discussed, largely, on the sufficiency of the evi

dence to sustain a verdict against the defendant. Thurtell v. Beaumont was not cited, nor was the case considered by the courts as if the sufficiency of the evidence to sustain a criminal accusation was at all involved. The only judge who adverted to the rule of evidence as to the degree of proof necessary to the finding of a verdict, was Justice Willes, in the House of Lords. He asked that he might be excused for referring to an authority "in support of the elementary proposition that in civil cases the preponderance of probability may constitute sufficient ground for a verdict, and then cited, at length, a passage from Newis v. Lark, Plowd. 412, and referred to Best on Ev. (2d ed.) 114. The passage cited from Plowden is one in which certainty in pleading is contrasted with sufficiency of proof, and it is said that "where the matter has gone so far that the parties are at issue, * * so that the jury is to give a verdict one way or the other, then, if the matter is doubtful, they may find their verdict upon that which appears the most probable." The reference to Best is the paragraph (§ 95) in which the author adverts to the "strong and marked difference as to the effect of evidence in civil and criminal proceedings," and states the rule to be that, in civil cases, a mere preponderance of probability-due regard being had to the burden of proof-is a sufficient basis of decision. These observations of the learned judge | are entitled to peculiar force, from the fact that they related to an action upon a statute which made the same acts from which a civil liability resulted, also the ground of a conviction upon an indictment.

It may safely be said that Thurtell v. Beaumont, in principle, stands alone and unsupported in the English courts, except in actions of libel and slander, which are to be regarded as exceptional, and resting upon considerations peculiar to the nature of the actions and of the injuries for which they are brought.

In the courts of this country, the principle adjudged in Thurtell v. Beaumont has received but slender support, except in libel and slander cases. The weight of authority is decidedly against the soundness of the rule there propounded, in its application to actions on policies of insurance, as well as other civil actions, where the issue is such that, for its support, a case must be made such as would afford ground for an indictment. In Gordon v. Parmelee, 15 Gray, 413, it was held that in an action on a promissory note, the defense that the note was obtained by false and fraudulent representations, might be sustained by a preponderance of evidence, as in other civil cases, and that it was not incumbent on the defendant to establish it by proof beyond a reasonable doubt, although the defense was based on a charge of fraudulent representations such as might be the subject of a criminal prosecution. In Bradish v. Bliss, 35 Vt. 326, the action was in trespass for burning the plaintiff's building, and the evidence showed that the defendant, if guilty of trespass, had set fire to the building designedly, and was guilty of the crime of arson. The court, nevertheless, held that, it being a civil cause, the issue must be determined by the fair preponderance of evidence. A similar decision was made in Munson v. Atwood, 30 Conn. 102, which was an action on a statute which gave the right to recover the treble value of property feloniously taken. In trover, where the evidence was such as to involve a charge of larceny, a direction to the jury that the evidence, to justify a verdict against the defendant, must satisfy them of the truth of the charge

beyond a reasonable doubt, was held to be erroneous. Bissel v. Wert, 35 Ind. 54.

The decisions in actions on policies of insurance against loss by fire are mainly to the same effect. In Schmidt v. N. Y. U. M. Fire Ins. Co., 1 Gray, 529, the defense was, that the plaintiff had purposely set fire to the property insured, and burned it; and it was held that the judge properly refused to instruct the jury that they must be satisfied, beyond a reasonable doubt, of the truth of this defense. The criticism on this case, in the court below, that the instruction actually given was, in substance, equivalent to an instruction that the defense must be established beyond a reasonable doubt, and that the case, if it does not inferentially recognize the rule in Thurtell v. Beaumont, is of no value as an authority against it, though warranted by some expressions of the judge, in his opinion, is shown to be untrue, in fact, by the opinion of the same judge, in Gordon v. Parmelee, 15 Gray, 413. In the latter case, he adverts to the case in 1 Gray, and declares it was not the purpose of the court to sanction any exception to the rule, or to say that, in any civil action, the jury were not to decide by the preponderance of the proof or the weight of the evidence; and he closes his opinion by saying that "in the opinion of the court, it is better that the rule be uniform, leaving the instruction, that the jury must be satisfied of the guilt of the party beyond a reasonable doubt, to apply solely to criminal cases." In the following cases, also, in actions on fire policies, where the defense was a willful destruction, by the assured, of the property insured, the rule of evidence adopted in Thurtell v. Beaumont was repudiated, and the correct rule declared to be that, in civil cases, the verdict should be determined by the preponderance of the evidence, without regard to the fact that in the defense was involved a charge which might be made the ground of a criminal prosecution. Scott v. Home Ins. Co., 1 Dill. C. C. 105; Huchberger v. Merchants' Fire Ins. Co., 4 Bissel's C. C. 265; Washington Ins. Co. v. Wilson, 7 Wis. 169; Blaeser v. M. M. M. Ins. Co., 37 Wis. 31; Rothschild v. Amer. Cent. Ins. Co., 62 Mo. 356; Etna Ins. Co. v. Johnson, 11 Bush, 587; Hoffman v. W. M. & F. Ins. Co., 1 La. Ann. 216; Wightman v. Same, 8 Rob. 442.

I fully concur in these decisions, and the reasoning on which they are founded.

In actions where usury was pleaded, it has been said that the defense must be established beyond a reasonable doubt. Conover v. Van Mater, 3 C. E. Green, 481; Taylor v. Morris, 7 id. 606. This language was used, perhaps inconsiderately, to express the quantity of evidence that, under the circumstances, should be required to defeat the plaintiff's security, without intending to assert that, as a rule of law, the same measure of proof should be required in civil as in criminal cases. So also in suits on fire policies, on a defense like that in the present case, judges, in their instructions to juries, have commented on the gravity of the charge contained in such a defense, and have put the presumption of innocence in the scales as an element to weigh in favor of the plaintiff and decide the issue, if the evidence was not entirely satisfactory. The charge of Judge Davis, in Huchberger v. Merchants' Fire Insurance Company, and of Judge Dillon, in Scott v. Home Insurance Company, and of Chief Justice Whelpley, in Powers v. Market Fire Insurance Company, in the Morris Circuit, are examples of this