The use of the term "penalty", or "liquidated damages," is not conclusive.1 On the one hand a provision for "liquidated damages " may appear from the context of the contract to be really a provision for a penalty, and will accordingly be • so treated.2 A like result has been reached where a liability imposed by statute, penal in its nature, is spoken of by statute as "liquidated damages." It is, notwithstanding, treated as a penalty.3 On the other hand a contract for a "penalty" may appear from the context to be a contract for liquidated damages, and will be so treated.4 So a provision for a "penalty" - "named as stipulated damages,"5 or for a "fine,"6 or "as a forfeiture,"7 or as a "guarantee or forefeiture,"8 or "as forfeit,"9 have each been held to be provisions for liquidated damages where such appeared to be their real nature. Prima facie the term used by the parties is the correct one.10 The presumption of the accuracy of the term used by the parties is possibly somewhat stronger when the term employed is "penalty" than when it is "liquidated damages."11 "The parties themselves denominate it a penalty; and it would require very strong evidence to authorize the court to say that their own words do not express their own intention."12

8 Williston v. Mathews, 55 Minn. 422; 56 X. W. 1112.

9 Chaude v. Shepard, 122 N. Y. 397; 25 N. E. 358.

10 Chaude v. Shepard, 122 N. Y. 397; 25 N. E. 358.

1 McCurry v. Gibson, 108 Ala. 451; 54 Am. St. Rep. 177; 18 So. 806; Hennessy v. Metzger, 152 111. 505; 43 Am. St. Rep. 267; 38 N. E. 1058; Willson v. Baltimore, 83 Md. 203; 55 Am. St. Rep. 339; 34 Atl. 774; May v. Crawford, 142 Mo. 390; 44 S. W. 260.

2 Kemble v. Farren, 6 Bing. 141; Chicago House-Wrecking Co. v. United States, 106 Fed. 385; 53 L. R. A. 122; 45 C. C. A. 343; Tilley v.

Loan Association, 52 Fed. 618; Dis-osway v. Edwards, 134 N. C. 254; 46 S. E. 501; Fitzpatrick v. Cotting-ham, 14 Wis. 219.

3 Anderson v. Byrnes, 122 Cal. 272; 54 Pac. 821.

4 Robinson v. Aid Society, 68 N. J. L. 723; 54 Atl. 416; Illinois Central Ry. v. Cabinet Co., 104 Tenn. 568; 78 Am. St. Rep. 933; 50 L. R. A. 729; 58 S. W. 303.

5 Tode v. Gross, 127 N. Y. 480; 24 Am. St. Rep. 475; 13 L. R. A. 652; 28 N. E. 469.

6 Manistee Iron Works Co. v. Lumber Co., 92 Wis. 21; 65 N. W. 863.