
    Kirby vs. Rice.
    In a warrant issued by a justice of the peace for a penalty given by statute, strict and technical nicety is not requisite; it is sufficient if the of-fence be charged with such certainty as will give the party notice of the matter he is called upon to defend, and will not permit a recovery for a different cause of action.
    It is not necessary in suing before a justice of the peace, to recover a penalty given by statute, to conclude the warrant contrary to the form of the statute.
    When a penalty is given to a party injured, and the right to sue and recover it, is vested in the injured party, by the commission of the offence; the party aggrieved may sue for and recover the penalty, in forma pauperis.
    
    This was a suit commenced by warrant, before a justice of the peace. The warrant is in the following form, “State of Tennessee, White county: To any lawful officer, to execute and return; whereas, Richard Kirby came before me, Charles Reeves, one of the justices of said county, and made complaint, that Theodrick B. Rice of said county, owning a mill in the county aforesaid, has for sometime past kept in his mill, a toll dish of too large a size for his half bushel, and has injured him, the said Kirby, by taking more than lawful toll; and further, the said Rice has not kept in his mill, a peck measure, nor any toll dish, agreeable thereto, as the law requires: These are therefore to command you, to summon said Rice to appear, &c. to answer said Richard Kirby, in a plea of debt, due by penalty, of twelve dollars and fifty cents.” On the trial of this suit before the justice, a judgment was rendered in favor of the plaintiff, Kirby, for twelve dollars and fifty cents, from which the defendant, Rice, appealed to the circuit court. In the circuit court, Rice moved to quash the warrant, because “it did not give a description of the offence, according to the statute, or conclude, contrary to the form thereof.” The circuit court quashed the warrant, and gave judgment for Rice, the defendant, from which judgment of the circuit eourt, Kirby, the plaintiff, prayed for an appeal, in die nature of a writ of eorrr, to this court, and prosecuted the same in forma pauperis.
    
    
      J. Rucks, for plaintiff in error.
    
      Sam Turney, for defendant in error. . •'
   Cateon ch. .7.

delivered the opinion-of the court.

The penalty sued .for, is sought to be recovered by force of the eleventh section of the act of 1777, chap. 23, which prescribes, “that all millers shall keep in their mills a half bushel and peck, at full measure, and'also proper toll-dishes for each measure; and every owner keeping a mill, who shall be lawfully convicted of keeping false toll-dishes, contrary to the intent and meaning of the act, shall forfeit and pay to the party injured, twelve dollars and a half, to be recovered before any justice of the peace, of the county, where the offence is committed.” The previous section prohibits the miller from taking “more than one eighth of the corn and wheat for grinding, and one fourteenth for chopping gruin of any kind.”

This cause was brought into the circuit court by the defendant, Rice, by appeal from the justice’s conviction, when it was moved to quash the warrant, because it did not give a description of the offence according to the statute, or conclude contrary to the form thereof. We are of opinion, the warrant, as a summons to appear and defend himself, afforded to the defendant, Rice, the notice that is usual in proceedings before justices, where no technicality of description is required of what the defendant is charged with, nor could the plaintiff, Kirby, recover on evidence, establishing a different cause of action; and for the reasons given in the previous cause on the docket, of Kirby against Lee, the judgment must be reversed, and the cause remanded for a trial on the minutes-

In this cause, that of the same plaintiff, against Lee, the appeal in error to this court, was prosecuted by Kirby, as a pauper. And it is insisted the pauper acts do not extend to penal actions. The penalty sued for in each of these actions, is given only to the party injured}, a right vested in Kirby to sue and recover on the commission of the offence; and no reason exists, why those afflicted with poverty, should be deprived of a legal remedy, because of that poverty, to compel millers to grind their bread stuffs, and to prevent cheats by fraudulent toll-dishes. Such practices are peculiarly oppressive upon those to whom bread is a main object in life, and it is of much more importance to them to enforce the law, than to those having plenty. The penalty is just as much a debt due, as any other consideration. How it would be-in a case wherejthe right to recover, rests on the bringing of the suit, and where, any person might sue for the penalty, it is not necessary to enquire.

Judgment reversed. 
      
      
         Reported page 439.
     