PENALTY is a sum of money declared by some statute or contract to be payable by one who commits an offense or breach of contract. It is considered as a kind of punish ment, and constituting indirectly a motive to the party to avoid the commission of the net which induces such a consequence. Many contracts executed between parties con tain a clause that one or other of them who fails to perform his part of the contract will incur a penalty, i.e., will be liable to pay a fixed sum of money to the other party. In such cases, a distinction is drawn between a liquidated and unliquidated penalty; and whether it is of the one kind or the other, depends on the language used in the contract. If it is a liquidated penalty, then, when the breach of contract is committed, the party in default must pay that precise sum, neither more nor less; but if it is unliquidated, then he is not to pay the whole sum, but merely such part of it as corresponds to the amount of injury or damage done, and of which proportion a jury is the sole judge in an action of damages. In statutes, when penalties are declared to follow on certain illegal acts, the sum is sometimes fixed, but in many cases only a maximum sum is stated, it being left to the court or the justices who enforce the penalty what is a sufficient punishment for the offense. Sometimes penalties can only be sued for by the parties immediately injured; but, as a general rule, and sinless it is otherwise restricted, anybody may,sue for the penalty, for in an offense against public law, where there is no public prosecutor, any person who chooses may set the law in motion. Accordingly, not only may anybody in
general sue for the penalty, hut an inducement is offered by declaring the party who does so to be entitled to the whole or a half of the penalty. Without such inducement, many offenses would be unpunished. The party who so sues is generally called the informer. Thus, in offenses against the game laws, anybody may sue for the penalty, and he is entitled to half of it. Sometimes the penalty can only be sued for in the superior courts of law ; but in the great majority of instances the enforcing of penalties is part of the administration of justice before justices of the peace. It is for the justices to fix the amount if they have (as they generally have) a discretion to do so. If it is not paid, the justices may issue a distress-warrant, authorizing a constable to seize and sell the goods of the party to pay the fine; and if there are no goods, then the justices may commit the party to prison as a substitutionary punishment. Sometimes justices have a discretion either to impose a penalty or commit the party to prison as an alternative punishment. All these matters depend on the construction of particular statutes.