Penal

Punishable; inflicting a punishment; containing a penalty or relating to a penalty.

— Penal action. In practice. An action upon a penal statute; an action for the recovery of a penalty given by statute. 3 Steph. 635, 536. Distinguished from a popular or qui tam action, in which the action is brought by the informer, to whom part of the penalty goed. A penal action or information is brought by an officer, and the penalty goes to the king. 1 Chit. Gen. Pr. 25, note; 2 Archb. Pr. 188. But in American law, the term includes actions brought by informers or other private persons, as well as those instituted by governments or public officers. In a broad sense, the term has been made to include all actions in which there may be a recovery of exemplary or vindictive damages, as sui is for libel and slander, or in which special, double, or treble damages are given by statute, such as actions to recover money paid as usury or lost in gaming. See Bailey v. Dean, 5 Barb. (N. Y.) 303; Ashley v. Frame, 4 Kan. App. 265, 45 Pac. 927; Cole v. Groves, 134 Mass. 472. But in a more particular sense it means
(1) an action on a statute which gives a certain penalty to be recovered by any person who will sue for it, (In re Barker. 56 Vt. 20,) or
(2) an action in which the judgment against the defendant is in the nafure of a fine or is intended as a punishment, actions in which the recovery is to be compensatory in its purpose and effect not being penal actions but civil suits, though they may carry special damages by statute. See Moller v. U. S., 57 Fed. 490, 6 C. C. A. 459; Atlanta v. Chattanooga Foundry & Pipe Works, 127 Fed. 23, 61 C. C. A. 387, 64 L. It. A. 721

— Penal bill. An instrument formerly in use, by which a party bound himself to pay a certain Bum or sums of money, or to do certain acts, or, in default thereof, to pay a certain specified sum by way of penalty; thence termed a "penal sum." These instruments have been superseded by the use of a band in a penal sum, with conditions. Brown.

— Penal bond. A band promising to pay a named sum of money (the penalty) with a condition underwritten that, if a stipulated collateral thing, other than the payment of money, be done or forborne, as the case may be, the obligation shall be void. Bum-side v. Wand, 170 Mo. 531, 71 S. W. 337, 62 L. R. A. 427.

— Penal clause. A penal clause is a secondary obligation, entered into for the purpose of enforcing the performance of a primary obligation. Civ. Code La. art. 2117. Also a clause in a statute declaring a pennity for a violation of the preceding clauses.

— Penal laws. Those which prohibit an act and impose a penalty for the commission of it. 2 Cro. Jan. 415. Strictly and properly speaking, a penal law is one imposing a penalty or punishment (and properly a pecuniary fine or mulct) for some offense of a public nature or wrong committed against the state. Sackett v. Sackett, 8 Pick. (Mass.) 320; Kilton v. Providence Tool Co., 22 R. I. 605. 48 Atl. 1039; Drew v. Russell, 47 Vt. 252; Nebraska Nat. Bank v. Walsh, 68 Aria 433, 59 S. W. 952, 82 Am. St Rep. 301. Strictly speaking, statutes giving a private action against a wrongdoer are not penal in their nafure, neither the liability imposed nor the remedy given being penal. If the wrong done is to the individual, the law giving him a right of action is remedial, rather than penal, though the sum to be recovered may be called a "penalty" or may consist in double or treble damages. See Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 In Ed. 1123; Diver-sey v. Smith, 103 111. 390, 42 Am. Rep. 14: Oullinan v. Burkhard, 41 Misc. Rep. 321, 84 N. Y. Supp. 825; People v. Common Co.uncil of Bay City, 36 Mich. 189.

— Penal servitude, in English criminni law. a punishment which consists in keeping an offender in confinement, and compelling him to labor. Steph. Crim. Dig. 2.

— Penal statntes. See "penal laws," supra.

— Penal snm. A sum agreed upon in a bond, to be forfeited if the condition of the bond is not fulfilled.

' 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.

Punishable; with a penalty annexed,

That which involves suffering: hence, more largely, that which pertains to punishment; inflicts loss by way of restraint or sanction. Penal is used as a synonym of criminal, in secondary senses of that word. Penal and criminal offence, penal and criminal code, penal and criminal justice, are equivalent expressions. In many connections the two words are not interchangeable; as in the expressions criminal or penal action, criminal conduct, penal bill or bond. The word penal, in a statute authorizing " all penal judgments," &c., to be reviewed, was construed to read " final," in Moody v. Stephenson, 1 Minn. 401. Penal action. An expression employed to designate an ordinary suit at law for the collection of a penalty imposed by law for some misconduct or prohibited act. Penal bill. An instrument formerly in use, by which a party bound himself to pay a certain sum or sums of money, or to do certain acts, or, in default thereof, to pay a certain specified sum by way of penalty, thence termed a penal sum. These instruments hare been superseded by the use of a bond in a penal sum, with conditions. Brown. Penal clause. That particular portion or subdivision of a statute which declares the consequences in the nature of punishment or loss which are to follow a violation of previous provisions. Penal lavsr, or statute. Laws imposing penalties or punishments are so called.

In one sense, all laws, properly so called, are penal laws; since any created may, in the absence of provisions excluding, expressly or by implication, the common-law rule, be followed by fine and imprisonment. But ordinarily, when a " penal law " is mentioned, the meaning is a law which expressly defines or limits the punishment of any offence, — whether such offence is one previously known to the law, or one created by the very law which provides the punishment. In parliamentary practice, inasmuch as a penal statute is, to the extent of the penalty, a money-bill, the commons claim the exclusive right of framing all such enactments, the lords and crown having merely a right of assent. Modey Sj- W. The question whether a given provision in an act of parliament is a penal one or not, is sometimes important. For instance, it is a rule that penal statutes must be construed strictly; that is, narrowly. It may also be sometimes a question whether a sum of money, payable under a statute by a person who has done or omitted to dp certain things, is intended to be so payable by way of penalty or by way of composition. If the former, then the act to which the penalty is annexed is itself illegal, and cannot be made the foundation of a legal contract; whereas, in the latter case, no such consequence will follow. Brown. Penal laws are those which prohibit an act, and impose a penalty for the commission of it. They are of three kinds, — ■pmta pecuniaria, poena corporalis, and poena exilii, (2 Cro.Jac. 415.) Wharton. A constitutional provision, directing the disposition of " fines assessed for any breach of the penal laws," should be considered as applying only to breaches of the criminal law, properlj' so called; that is, to crimes and misdemeanors. It does not extend to a statute penalty, recoverable in debt. A suit on a penal statute is not a criminal, but a civil, cause. Such a statute, therefore, is no p^rt of the criminal law. Common Council of Town of Indianapolis v. Fairchild, 1 Ind. 315. Penal servitude. A punishment introduced in 1853, by Stat. 16 & 17 Vict. ch. 99, in lieu of transportation beyond seas. Every person sentenced to this punishment may be kept in any prison or place of confinement in the United l Ongdom, or in any river, port, or harbor thereof, or in some place in her majesty's dominions beyond seas, duly appointed for such purpose by order in council, according as the secretary of state may, from time to time, direct; and may, while confined there, be kept to hard labor, and otherwise dealt with, in like manner as persons formerly sentenced to transportation might be dealt with while so confined. The act above referred to was further amended, in 1864, by Stat. 27 & 28 Vict. ch. 47, by section 2 of which it is provided that no person shall be sentenced to penal servitude for a shorter period than five years. (4 Steph. Com. 449-452; Oke Mag. Sun. 940-945; Cox ^ Sound. Cr. Law, 311.) Mozleii ^ W. Penal sum. A sum declared by bond to be forfeited, if the condition of the bond is not fulfilled. This is otherwise called the penalty of the bond. If the bond is for the payment of money, the penal sum is generally fixed at twice the amount.