penal action. 1. A criminal prosecution. [Cases: Action 18. C.J.S. Actions § 68.]

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. [Cases: Action 19. C.J.S. Actions § 70.]

“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 pro-ceedings.” 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. [Cases: Action 19. C.J.S. Actions § 70.]

“[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 doers of various prohibited acts; these acts being thus prohibited, and visited with penalties, solely on account of their tendency to cause evil to the community at large, ‘considered as a community.’ For example, a person who, in advertising a reward for the return of lost property, adds that ‘no questions will be asked’ incurs by the Larceny Act, 1861, a penalty of £50 recoverable by anyone who will sue for it.” J.W. Cecil Turner, Kenny’s Outlines of Criminal Law 533–34 (16th ed. 1952).


A Black’s Law Dictionary (8th ed. 2004)

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