Penal

' Pertaining to, prescribing, or incurring punishment; with a penalty attached.

Penal action

A suit for a penalty. Penal bill. See Penal Sum. Penal clause. The words in a statute which attach a penalty to the act forbidden by it. Penal servitude.

See Servitude, 1.

Penal statute

An act which inflicts a forfeiture for transgressing its provisions.*

See Statute.

Penal sum

The sum in a bond declared to be forfeited in case of non-fulfillment of the covenant. When the bond is for the payment of money, the penal sum is usually twice the real debt. The instrument was formerly called a "penal bill.'" See further Penalty.

Penalty.

Punishment; also, money recoverable by way of punishment; and, also, a sum named in a bond as a forfeit in case the obligor fails to comply with the conditions. ^ The imposition of the payment of a sum of money, or some personal suffering.'' Is in the nature of a punishment for the non-performance of an act or for the performance of an unlawful act, and in the former case stands in lieu of the act." Involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by a civil or a criminal prosecution.'

— Includes fines, which are pecuniary penalties.'" " Penalty," " fine," and " forfeiture " are often used 1 4 Bl. Com. 327, 325. a See Washb. Jud. Hist. 142., ' L. poena, pain, suffering, punishment. • [3 Bl. Com. 161. \ » See 3 Bl. Com. 340. « See 2 Bl. Com. 340. ' [Hills V. Hunt, 28 E. L. & E. 396 (1854), Maule, J. 8 County of San Luis Obispo v. Hendricks, 71 Cal. 245(18861, Searls, C. • United States v. Chouteau, 102 U. S. 611 (1880) Field, J. See also 16 S. & R. 323; 13 Abb. Pr. 237; 31 How. confusedly. "Penalty" is the general termJ 'See Fine, 2; Forfeiture; Punishment. Wlien a penalty is inserted in an instrument to secure the performance or enjoyment of a collateral object, the latter is considered as the principal intent of the instrument, the penalty as accessory, and, therefore, intended, only to secure the due performance thereof or the damage incurred by non-performance. In every such case, the true test by which to ascertain whether relief can or cannot be had in equity is to consider whether compensation can be made or not. If it cannot be made, a court of eguity will not interfere. If it can be made, if the penalty is to secure the mere payment of money, then equity will relieve the party, upon paying the principal and interest. If it is to secure the performance of some collateral act or undertaking, a court of equity will direct an issue quantum damnificatus; and, when the amount of damages is ascertained by a jury, will grant relief upon the payment of suchdamages. As the penalty is designed as a mere security, when the party obtains his money, or his damages, he gets all that he expected, all that, in justice, he is entitled to. But there is a distinction between a, "penalty," strictly so called, and " liquidated damages." The latter properly occur when the parties have agreed that, in case one party shall do a stipulated act, or omit to do it, the other party shall receive a certain sum as the just, appropriate, and conventional amoimt of the damages sustained by such act or omission. In cases of this sort, courts of equity will not interfere to grant relief; but will deem the parties entitled to fix their own measure of damages; provided always that the damages do not assume the character of gross extravagance, or of wanton and unreasonable disproportion to the nature or extent of the injury. On the other hand, courts of equity will not suffer their jurisdiction to be evaded merely by the fact that the parties have called a sum " damages " which is in fact and intent a penalty;

— or because they have designedly used language and inserted provisions which are in their nature penal, and endeavored to cover up their objects under other disguises.^ See Damages, Liquidated. The mode in which penalties shall be enforced and what disposition shall be made of the proceeds are matters of legislative discretion.^ While the judgment on a penal bond is technically rendered for the full amount of the penalty, the execution will be limited to the amount of the damages proved to have been sustained by the breach of the bond.* Debt lies for a statutory penalty bec.ause the sum demanded is certain, but, though in form ex contractu, » Gosselink v. Campbell, 4 Iowa, aOO (1856); United States V. Mathews, 23 F. R. 75 (1885j. 23 Story, Eq. §§ 1313-18. Approved, Clark v. Barnard, 108 U. S. 455 (1883), Matthews, X; i6. 454-58, cases. And see Mc Pherson v. Robertson, 82 Ala. 462 (1886), cases; 18 Cent. Law J. 143^6 (1884), cases; 17 Ct. CI. 215; 11 F. R. 119; 12 id. 444; 48 Pa. 450; 54 id. 329; 71 id. 180; 19 S. C. 434. " 8 Missouri Pacific R. Co. v. Humes, 115 U. S. 513, 523 it is founded in fact upon a tort. The necessity of establishing a joint liability does not exist; it is sufficient if the liability of any of the defendants is shown. Judgment may be entered against them and in favor of the others whose complicity in the offense, for which the penalty is prescribed, is not proved, precisely as though the action were in form as well as in substance ex delicto.^ See Contribution. Penalties are uever en^tended by implication. They must be expressly imposed or they cannot be enforced. 2 Extreme penalty of the law: death, q. v.