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penal action See ACTION (4).

penal action 1. A criminal prosecution. 2. A civil proceeding in which either the state or a common informer sues to recover a penalty from a defendant who has violated a statute. Although civil in nature, a penal action resembles a criminal proceeding because the result of a successful action is a monetary penalty intended, like a fine, to punish the defendant. See COMMON INFORMER. "At one time it was a frequent practice, when it was desired to repress some type of conduct thought to be harmful, to do so by the machinery of the civil rather than of the criminal law. The means so chosen was called a penal action, as being brought for the recovery of a penalty; and it might be brought, according to the wording of the particular statute creating the penal action, either by the Attorney-General on behalf of the state, or by a common informer on his own account. A common informer was anyone who should first sue the offender for the penalty. Penal actions are still possible in a few cases, and their existence renders invalid several suggested distinctions between civil wrongs and crimes." John Salmond, Jurisprudence 107 (Glanville L. Williams ed., 10th ed. 1947). "For in 'penal actions,' unless the statute expressly authorizes private persons to act as informers, the State alone can sue and recover the penalty; and yet there is full authority for ranking such suits by it as merely civil proceedings." J.w. Cecil Turner, Kenny's Outlines of Criminal Law 538 (16th ed. 1952). 3. A civil lawsuit by an aggrieved party seeking recovery of a statutory fine or a penalty, such as punitive damages. "[T]here exists a well-known class of proceedings called 'penal actions,' by which pecuniary penalties can be recovered - in some cases by any person who will sue for them from the does of various prohibited acts;

penal bill See penal bond under BOND (2).

penal bond See BOND (2).

penal bond A bond requiring the obligor to pay a specified sum as a penalty if the underlying obligation is not performed. Also termed penal bill; common-defeasance bond.

penal clause See PENALTY CLAUSE.

penal code A compilation of criminal laws, usu. defining and categorizing the offenses and setting forth their respective punishments. Also termed criminal code. See MODEL PENAL CODE.

penal colony A remote place of detention for convicts and political prisoners, usu. in an isolated part of a nation or in a nation s extraterritorial holdings. Historical examples include the Soviet Union s gulags in Siberia and France s penal colony on Devil s Island off the coast of Guiana.

penal custody Custody intended to punish a criminal offender.

penal custody See CUSTODY (1).

penal institution See PRISON.

penal law 1. See penal statute under STATUTE. 2. See CRIMINAL LAW.

penal liability See LIABILITY.

penal redress A form of penal liability requiring full compensation of the injured person as an instrument for punishing the offender; compensation paid to the injured person for the full value of the loss (an amount that may far exceed the wrongdoer benefit). See RESTITUTION.

penal redress See REDRESS.

penal sanction See criminal sanction under SANCTION.

penal servitude Confinement in prison with hard labor. See HARD LABOR. Cf. IMPRISONMENT.

penal statute A law that defines an offense and prescribes its corresponding fine, penalty, or punishment. - Also termed penal law; punitive statute. "It is a familiar and well•settled rule that penal statutes are to be construed strictly, and not extended by implications, intendments, analogies, or equitable considerations. Thus, an offense cannot be created or inferred by vague implications. And a court cannot create a penalty by construction, but must avoid it by construction unless it is brought within the letter and the necessary meaning of the act creating it." Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws 287 (1896).

penal statute. See STATUTE.

penal sum The monetary amount specified as a penalty in a penal bond. See penal bond under BOND (2).

penalty 1. Punishment imposed on a wrongdoer, usu. in the form of imprisonment or fine; esp., a sum of money exacted as punishment for either a wrong to the state or a civil wrong (as distinguished from compensation for the injured party s loss) Though usu. for crimes, penalties are also sometimes imposed for civil wrongs.

penalty clause A contractual provision that assesses against a defaulting party an excessive monetary charge unrelated to actual harm. Penalty clauses are generally unenforceable. Often shortened to penalty_ Also termed penal clause. Cf. LIQUIDATED-DAMAGES CLAUSE; LlMITATION-OF-REMEDIES CLAUSE. "It not infrequently happens that contracts provide for what is to happen in the event of a breach by the parties, or by one of them. Such provisions may be perfectly simple attempts to avoid future disputes, and to quantify the probable amount of any loss. That is unobjectionable. But sometimes clauses of this kind are not designed to quantify the amount of the probable loss, but are designed to terrorize, or frighten, the party into performance. For example, a contract may provide that the promisor is to pay £5 on a certain event, but if he fails to do so, he must then pay £500. Now a clause of that kind is called a penalty clause by lawyers, and for several hundred years it has been the law that such promises cannot be enforced. The standard justification for the law here is that it is unfair and unconscionable to enforce clauses which are designed to act in terrorem." P.S. Atiyah, Promises, Morals, and Law 57-58 (1981).

penalty phase The part of a criminal trial in which the fact-finder determines the punishment for a defendant who has been found guilty. Also termed sentencing phase. Cf. GUIl.T PHASE.

penalty point A punishment levied for a traffic offense and accumulated on the driver s record. If a driver receives a statutorily set number of points, the driver s license may be restricted, suspended, or terminated.

penance A punishment assessed by an ecclesiastical court for some spiritual offense.

pend (Of a lawsuit) to be awaiting decision or settlement.

pendency (pen-dan-see), The state or condition of being pending or continuing undecided.

pendens See LIS PENDENS.

pendent (pen-dant), adj. 1. Not yet decided; pending <a pendent action>. 2. Of or relating to pendent jurisdiction or pendent-party jurisdiction <pendent parties>. 3. Contingent; dependent <pendent upon a different claim>.

pendent jurisdiction (pen-dant). A courts jurisdiction to hear and determine a claim over which it would not otherwise have jurisdiction, because the claim arises from the same transaction or occurrence as another claim that is properly before the court. For example, if a plaintiff brings suit in federal court claiming that the defendant, in one transaction, violated both a federal and a state law, the federal court has jurisdiction over the federal claim (under federal-question jurisdiction) and also has jurisdiction over the state claim that is pendent to the federal claim. Pendent jurisdiction has now been codified as supplemental jurisdiction. 28 USCA § 1367. Also termed pendent-claim jurisdiction. See supplemental jurisdiction. Cf. ancillary jurisdiction.

pendent jurisdiction See JURISDICTION.

pendent-claim jurisdiction See pendent jurisdiction under JURISDICTION.

pendente lite (pen-den-tee li-tee), adv. [Latin "while the action is pending"] During the proceeding or litigation; in a manner contingent on the outcome oflitigation. Also termed lite pendente. Cf. LIS PENDENS.

pendente lite administration See administration pendente lite.

pendente lite administration See administration pendente lite under ADMINISTRATION.

pendente processu (pen-den-tee pra-ses-[y]oo). [Law Latin] Hist. During the pendency of the process.

pendente tutela (pen-den-tee t[y]oo-tee-la). [Latin]. During the tutory.

pendentesfructus (pen-den-teez [frak-tasl). [Latin]. Hanging fruits. Ihese fruits - as distinguished from fruits that have been gathered - must be restored to a real owner who defeats the claims of a bona fide possessor. Sometimes shortened to pendentes.

pendent-party jurisdiction A courts jurisdiction to adjudicate a claim against a party who is not otherwise subject to the court"s jurisdiction, because the claim by or against that party arises from the same transaction or occurrence as another claim that is properly before the court. Pendent-party jurisdiction has been a hotly debated subject, and was severely limited by the U.S. Supreme Court in Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003 (1990). The concept is now codified in the supplemental jurisdiction statute, and it applies to federal-question cases but not to diversity-jurisdiction cases. 28 USCA § 1367. Neither pendent-party jurisdiction nor supplemental jurisdiction may be used to circumvent the complete-diversity requirement in cases founded on diversity jurisdiction. See supplemental jurisdiction.

pendent-party jurisdiction See JURISDICTION.

pendent-venue doctrine The principle that once venue is established for a federal claim, proof of venue for additional federal claims, cross-claims, and counterclaims is unnecessary.

pending 1. Remaining undecided; awaiting decision <a pending case>. 2. Parliamentary law. Of a motion) under consideration; moved by a member and stated by the chair as a question for the meeting s consideration. See CONSIDERATION (2); ON THE FLOOR. A motion may be immediately pending, meaning that it is directly under consideration, being the last motion stated by the chair and next in line for a vote; or it may be pending subject to other motions of higher rank that have taken precedence over it. See immediately pending motion and pending motion under MOTION (2).

pending motion See MOTION (2).

pending, prep 1. Throughout the continuance of; during <in escrow pending arbitration>. 2. While awaiting; until <the injunction was in force pending trial>.

pending-ordinance doctrine The principle that a municipality may properly deny an application for a property use that, although it would satisfy existing law, would violate a law that is pending when the application is made. This doctrine was judicially created, mainly to short-circuit landowners attempts to circumvent a new ordinance by applying for a nonconforming use on the eve ofits approval.

penetration 1. Criminal law. The entry of the penis or some other part of the body or a foreign object into the vagina or other bodily orifice. This is the typical meaning today in statutes defining sexual offenses. Also termed intromission. See RAPE (1). 2. The depth reached by a bullet or other projectile in something against which the projectile is fired. 3. The act of piercing or passing something into or through a body or object. - penetrate, vb.

penetration pricing Pricing of a new product below its anticipated market price to enter a market and capture market share by breaking down existing brand loyalties.

penitentiary (pen-a-ten-sha-ree), A correctional facility or other place oflong-term confinement for convicted criminals; PRISON. penitentiary, adj.

penitentiary misdemeanor See serious misdemeanor under MISDEMEANOR.

Pennoyer rule (pa-noy-ar). The principle that a court may not issue a personal judgment against a defendant over whom it has no personal jurisdiction. Pennoyer v. Neff, 95 U.S. 714 (1877).

pennsylvania rule. The principle that a tortfeasar who violates a statute in the process of causing an injury has the burden of showing that the violation did not cause the injury. The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 (1874).

penny stock See STOCK.

penny stock An equity security that is not traded in established markets, represents no tangible assets, or has average revenues less than reqUired for trading on an exchange. Typically, a penny stock is highly speculative and can be purchased for less than $5 a share.

penology (pee-nol-a-jee), The study of penal institutions, crime prevention, and the punishment and rehabilitation of criminals, including the art of fitting the right treatment to an offender. Cf. CRIMINOLOGY. penological (pee-na-loj-i-kal), ad}. penologist (pee¬nol-a-jist), n.

pensio (pen-shee-oh), n. [Latin] Roman & civil law. A payment for the use of a thing, such as rent for the use of another s house.

pension A fixed sum paid regularly to a person (or to the person s beneficiaries), esp. by an employer as a retirement benefit. Cf. ANNUITY (3).

Pension and Welfare Benefits Administration A unit in the U.S. Department of Labor that was responsible for regulating employee pension plans under the Employees Retirement I ncome Security Act (ERISA) and for enforcing the Act through its field offices. It has been replaced by the Employee Benefits Security Administration. Abbr. PWBA.

Pension Benefit Guaranty Corporation A self-financing federal corporation that guarantees payment of pension benefits in covered benefit pension plans. Abbr. PBGC.

pension plan See PENSION PLAN.

pension plan 1. Under ERISA, any plan, fund, or program established or maintained by an employer or an employee organization that provides retirement income to employees or results in a deferral of income by employees extending to the termination of employment or beyond. 29 USCA § 1002(2)(A). 2. Under the Internal Revenue Code, an employer s plan established and maintained primarily to provide systematically for the payment of definitely determinable benefits to employees over a period of years, usu. for life, after retirement. See EMPLOYEE RETIREMENT INCOME SECURITY ACT. Cf. EMPLOYEE BENEFIT PLAN.

pension trust See TRUST.

pensioner A recipient or beneficiary of a pension plan.

Pentagon Force Protection Agency A unit in the U.S. Department of Defense responsible for operating the Pentagon police force and providing basic law enforcement and security for the Pentagon and other military installations in the Washington, D.C. area. The Agency was formed after the Pentagon was attacked on 11 September 2001. - Abbr. PFPA.

penumbra (pi-nam-bra), A surrounding area or periphery of uncertain extent. In constitutional law, the Supreme Court has ruled that the specific guarantees in the Bill of Rights have penumbras containing implied rights, esp. the right of privacy. PI. penumbras, penumbrae (pi-nam-bree). penumbral (pi-nam¬brdl), adj. Problems of fringe meaning are sometimes spoken of as problems of the penumbra the point being that, in the case of a great many words, there is no doubt about the hard core of their meanings, but different views may well be taken on the question whether the words are applicable to things or situations outside that hard core: Rupert Cross, Statutory Interpretation 57 (1976).

penuria peritorum (pa-nyoor-ee-a per-i-tor-am). [Latin]. A scarcity of (legally) skilled men. The phrase appeared in reference to the grantor s lack of proper assistance in preparing and executing a conveyance.

penuria testium (pa-nyoor-ee-a tes-tee-am). [Latin]. A scarcity of witnesses. The disqualifications formerly attaching to witnesses, and especially that of relationship, were sometimes disre• garded in occult or private facts, where there must, from the nature of the case, be a scarcity of unexceptionable witnesses. It was not enough in this sense, to constitute a penuria testium, to prove that the other eVidence was scanty and defective; it had to be shown farther that the penuria was necessarily occasioned by the very nature of the question at issue." William Bell, Bell s Dictionary and Digest of the Law of Scotland 798 (George Watson ed., 7th ed. 1890).

peonage (pee-a-nij), Illegal and involuntary servitude in satisfaction of a debt. - peon, n. Peonage, which is a term descriptive of a condition that existed in Spanish America, and especially in Mexico, and in the territory of New Mexico, and which may be defined as the status or condition of compulsory service based upon the indebtedness of the peon to the master, the basic fact being the indebtedness, is abolished and prohibited by an act of Congress which further declares that any statute, resolution, regulation, ordinance, or usage of any territory or state designed or operating to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, shall be null and void [42 USCA § 1994]." 45 Am. Jur. 2d Involuntary Servitude and Peonage § 10, at 935-36 (1969).

people (usu. cap.) The citizens of a state as represented by the prosecution in a criminal case <People v. Snyder>.

people s court 1. A court in which individuals can resolve small disputes. See small-claims court under COURT. 2. (cap.) In Nazi Germany, a tribunal that dealt with political offenses. In German, Volksger¬ichtshof

people's court See PEOPLE'S COURT.

people-smuggling The crime of helping a person enter a country illegally in return for a fee. Cf. human trafficking under TRAFFICKING; SMUGGLING.

peppercorn A small or insignificant thing or amount; nominal consideration <the contract was upheld despite involving mere peppercorn>. See nominal consideration under CONSIDERATION; peppercorn rent under RENT.

peppercorn rent See RENT.

peppercorn rent A nominal rent that is far below the market rate. The rent may be a mere token payment. Historically in English law, some lease agreements called for a token annual rent payment of a Single dried berry of black pepper. See PEPPERCORN.

per (par), prep. [Latin]. 1. Through; by <the dissent, per Justice Thomas>. 2. For each; for every <55 miles per hour>. 3. In accordance with the terms of; according to <per the contract>.

per aequipollens (par ee-kwi-pol-enz). [Latin]. By an equivalent.

per aes et libram (par ees et li-bram). [Latin] Roman law. By bronze (or copper) and scales. The phrase typically referred to the fictitious sale in a mancipation during which the purchaser struck the scales with a piece of bronze or copper and then gave it to the seller as a symbol of the price. See MANCIPATION.

per aHum stetit (par ay-ee-am stet-it). [Latin]. It was owing to (something done by) another.

per ambages (par am-bay-jeez). [Latin]. Indirectly; evasively.

per annum (par an-dm), adv. [Latin]. By, for, or in each year; annually <interest of eight percent per annum>.

per autre vie See PUR AUTRE VIE.

per aversionem (par a-var-zhee-oh-nam). [Latin "for a lump sum"] Roman 6- civil law. Of or relating to a sale in which goods are taken in bulk or land is bought by estimation ofthe number of acres. This type of sale is so called because the buyer "turns away" from a careful scrutiny of the things purchased. It is a fundamental principle, pervading everywhere the doctrine of sales of chattels, that if the goods of different value be sold in bulk, and not separately, and for a single price, or per aversionem, in the language of the civilians, the sale is perfect, and the risk with the buyer; but if they be sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller, until the speCific property be separated and identified." 2 James Kent, Commentaries on American Law *496 (George Comstock ed., 11th ed. 1866).

per bouche (par boosh). [Law French] By the mouth; orally.

per capita (par kap-i-ta), adj. [Latin "by the head"]. 1. Divided equally among all individuals, usu. in the same class <the court will distribute the property to the descendants on a per capita basis>. Cf. PER STIRPES. Per capita means taking as an individual and not as a representative of an ancestor. Suppose the testator ... with three living children and three grandchildren who are the issue of a deceased son, had desired and had so stated in his will that his own children and the children of his deceased son should share equally in the estate. In that event the estate would be divided into six parts and each of the three children and each of the three grandchildren would receive an equal portion of the total estate namely, one•sixth." Gilbert Thomas Stephenson, Wills 30 (934).

per capita tax See poll tax.

per capita with representation Divided equally among all members of a class of takers, including those who have predeceased the testator, so that no family stocks are cut off by the prior death of a taker. For example, if the testator) has three children A, B, and C and C has two children but predeceases T, C s children will still take C s share when T s estate is distributed. 2. Allocated to each person; possessed by each individual <the average annual per capita income has increased over the last two years>. per capita, adv.

per collationem bonorum (par ka-lay-shee-oh-nam ba-nor-am). [Latin] Scots law. By bringing goods received into account (collation). When heirs-at-Iaw, or heirs who had received from a deceased ancestor during the ancestor s lifetime, wished to share in the legitim fund, they had to bring in (to collate) what they had received before the legitim could be shared out. See COLLATION (2).

per consequens (par kon-sa-kwenz). [Latin] By consequence; consequently.

per considerationem curiae (par kan-sid-a-ray-shee-oh¬nam kyoor-ee-ee). [Law Latin] By the consideration of the court.

per contra (per-kon-tra). [Latin]. On the other hand; to the contrary; by contrast.

per cur abbr. Per curiam. See per curiam opinion under OPINION (1).

per curiam (par kyoor-ee-am), adv. & adj. [Latin]. By the court as a whole.

per curiam See per curiam opinion under OPINION (1).

per curiam opinion (par kyoor-ee-am). An opinion handed down by an appellate court without identifying the individual judge who wrote the opinion. Sometimes shortened to per curiam. The most controversial form of summary disposition is a per curiam opinion that simultaneously grants certiorari and disposes of the merits at some length, discussing both the facts and the issues involved. The result is usually a reversal of the Judgment below. The parties are given no opportunity to file briefs on the merits or to argue orally before the Court. Indeed, they are given no forma! notice whatever of the Court s intention to dispose of the certiorari papers in this manner. Robert L. Stern et aI., Supreme Court Practice 320 (8th ed. 2002).

per curiam opinion See OPINION (1).

per diem (par-di-am or dee-am), adv. [Latin]. By the day; for each day. Cf. IN DIEM.

per diem adj. Based on or calculated by the day <per diem interest>.

per diem 1. A monetary daily allowance, usu. to cover expenses. 2. A daily fee.

per eundem (par ee-an-dam). [Latin] By the same. This term often appears in the phrase per eundem in eadem ("by the same judge in the same case").

per expressum (par ek-spres-am). [Latin). Expressly; explicitly.