Penfold v Westcote [1806] 2 B&P (NR) 335

Libel; imputation of crime; words capable of defamation

(270 words)


The defendant said the following about the claimant: “Why don’t you come out you blackguard rascal, scoundral, Penfold, you are a thief”. The trial judge directed the jury that it was for the defendant to prove that by using the word ‘thief’ he did not imply the need to charge the claimant with a felony. The jury found in favour of the claimant.


The defendant appealed to have the verdict set aside. He argued that the words and expressions surrounding the word ‘thief’ proved that the he did not intend to impute felony – he only used the word in the heat of the moment. He further claims that no evidence was put forward, which would have shown that anyone else understood the word ‘thief’ to imply the need to charge the claimant with a crime.


Unless the jury found that the defendant intended to imply that the claimant was to be charged with theft, it should not have found in favour of the claimant. The jury should consider the manner in which the words used were pronounced and also other circumstances, which could explain the meaning of the word. If the jury found that the word ‘thief’ was merely used as general abuse, they should have dismissed the claimant’s case. All in all, however, if someone calls another a ‘thief’ together with other names of general abuse (that would not normally impute crime), then – in the absence of any evidence to support any other meaning of the word ‘thief’ – the jury can find for the claimant as the word ‘thief’ is actionable in itself as imputing theft.