By the Oourt
Flandrau, J.After a very careful review of this case, we are unanimous that I erred in the measure of damages which I adopted on the trial below.
The suit is in the nature of an action on the case for damages arising from the negligence of the Defendants. I gave the Plaintiff judgment for the amount of the note and interest at the rate of four per cent per month up to the time of the entry *328of judgment, which was the rate of interest stipulated in the note. My view of the case at that time was, that having, by a careless act, destroyed the Plaintiff’s security, and consequently rendered the note worthless, the Defendant would be bound to make him good for the whole amount of the note and interest. I am convinced now, that the proper rule of damages is, the value of the property destroyed at the time of the injury, with seven per cent per annum upon that amount until judgment. Had the property destroyed or rendered valueless been a house or a horse instead of a promissory note, the damages would not have been the value of the house or horse, with the amount added which the Plaintiff would otherwise have received for rent or hire, but the value of the property destroyed with seven per cent per annum. The cases are the same in principle.
The majority of the Court are of the opinion that the proof sustains the finding of the Court below, in all its other essential particulars, and that the complaint contains a good cause of action.
The Chief Justice differs with us on some points, and will submit his views on them.
We are clear that we can modify a judgment when the error committed goes to a part of the finding, and can be separated with certainty: in this case, the error was in the measure of damages adopted being four per cent per month, instead of seven per cent per annum. Judgment must be entered in this court, for the Plaintiff, for the amount of the note, and four per cent per month interest up to the time of the cancelling of the mortgage, by the Defendants, and seven per cent per annum on that amount until judgment.
The party who succeeds in obtaining a modification of the judgment below, is a prevailing party on the writ of Error, and is entitled to his costs in all cases, against the adverse party. Stat. of Min. Last Ed. page 624, Sec. 26.
Chief Justice Emmett, filed the following opinion in this case:
It is to me somewhat difficult to determine the precise nature of this action under our practice. Whether it be in the nature *329of an action of debt, an action on the case, or a suit in equity. It has somewhat a resembance to each — in form the action is debt — in substance, it is an action on the case, while complete justice could not be done between the parties without exercising the powers of a Court of Chancery.
We cannot properly treat this as a debt due to the Plaintiff, for the action sounds in tort rather than contract; nor can we regard it as a suit in equity and afford the Plaintiff relief, for he must first do equity, by surrendering or offering to surrender the note and mortgage, before a Court could exercise its Chancery powers in his behalf. It is rather to be considered as an action on the case to recover the damages which the Plaintiff has sustained by the wrongful or negligent act of the Defendants; and this doubtless was the view taken by the Court below. The case was submitted to the Judge and he found all the issues in favor of the Plaintiff, and found as one of the facts, “ that on the 4th day of February, 1857, Phillips conveyed the lands on which the said mortgage was formerly a lien, to a bona fide purchaser, without not/ice of the assignment of the mortgage, or the circumstances under which the same was satisfied.” And as one oí the conclusions of law the judge found “that the Plaintiff lost his security by the negligent act of the Defendants in satisfying the mortgage of record, and the subsequent sale of the premises to a bona fide purchaser, and that the Plaintiff is entitled to recover of the said Defendants the amount of the note with interest at the rate of four per cent per month from the 31st day of May 1856, up to which time the interest has been paid, amounting to the sum of $365 33, at the date of this decision,” and ordered the Clerk to enter judgment for the amount.
The evidence in proof before the Court below is embraced in the bill of exceptions, and the first error assigned is, “ that the finding and decision of the judge below is unsupported by and .against the weight of all other evidence given in the cause.”
Upon a careful examination of the evidence, it will be seen that the most material fact found — the one upon which the decision for the Plaintiff is evidently based, and without the existence of which he could not recover in any view of the *330case, is, that Burwell was “ an innocent purchaser without no tice of the assignment of the mortgage, or the circumstances under which the same was satisfied,” is neither alleged in the pleadings, nor is there a particle of testimony in the proofs to support it. The judge, in the absence perhaps of any argument on that question, must have taken it for granted, that a fact so obviously necessary to the right of the Plaintiff to recover, was either proved or admitted; or else he presumed its existence from the deed alone- — certain it is however that the finding of this fact is unsupported by testimony or by allegation. And it may further be stated that not only is it essential to the Plaintiff’s right to recover that Burwell should have been an innocent purchaser without notice, but it is essentially important that his purchase should have been for a valuable consideration — what the consideration was does not appear by the testimony, nor is there any allegation concerning it. I cannot therefore resist the conclusion, that the Court below erred, as well in the finding of the facts, as upon the measure of damages, awarded thereon, had the facts been found correctly, and for these reasons I think a new trial should have been awarded.