Tuberville v Savage [1669] EWHC KB J25

Whether a threatening declaration of future harm constituted an unlawful assault.


A man placed his hand on his sword and told another, “If it were not assize-time, I would not take such language.” The justices of assize were in town.


The question was as to whether laying a hand on a sword and stating “If it were not assize-time, I would not take such language,” constituted an unlawful assault by placing another in apprehension of immediate violence.


The Court held that an assault requires both (1) the intention and (2) the act of assault. Even an act of, for example, striking a man, without an intention to assault, does not constitute an assault. Accordingly, the Court held that the facts did not give rise as the man merely stipulated that he would have the intention to assault if it were not assize-time. It was, indeed, assize-time and the man’s declaration expressly stipulated that he would not and did not intend tocommit an assault. Thus, there could have been no assault as there were no intention nor act of assault, nor imminent threat thereof.