¶1The opinion of the Court was delivered by
¶2Had the defendant, Campbell, acted under a simulated or pretended authority, the charge would be liable to no objection. But although the recognizance of bail was void, as was decided in Williams v. Mitchell, 1 Penns. Rep. 9, yet there was no evidence that Campbell was aware of the defect. He acted under what he supposed, although erroneously, to be a good process, with the single interest, so far as it appeared, to exonerate himself from his liability as special bail. I have never understood that in such a case a defendant was in a worse situation than if he had, without the colour of legal authority, gone into the house of the plaintiff and dragged him to gaol. The principle is correctly stated by the court, but the error consists in its misapplication to the facts of the case. A doubt was expressed whether this was error which this court could notice, but upon reflection we think that the court gave the jury a false measure or criterion of damages, to the manifest injury of the defendant, which it is the duty of this court to correct.
¶3Judgment reversed, and a venire de novo awarded.