## Facts

- Tuberville and Savage quarreled in public during assize-time, when judges were present in town.
- After Savage insulted him, Tuberville put his hand on his sword and stated, in substance, that if it were not assize-time he would not take such language.
- Savage struck Tuberville, seriously injuring him and causing the loss of an eye.
- Tuberville sued Savage for assault, battery, and wounding.
- Savage defended on the ground that Tuberville’s gesture and words constituted an assault, or at least provocation sufficient to justify or mitigate Savage’s use of force.

## Issues

1. Whether placing a hand on a sword, coupled with a conditional statement indicating no present intent to attack, constitutes an assault by creating reasonable apprehension of immediate violence.
2. Whether Tuberville’s conduct could justify or mitigate Savage’s violent response as self-defense or provocation.

## Decision

- Judgment for Tuberville; Savage’s defense failed.
- The court held that Tuberville committed no assault because his words, read with his gesture, negated any present intent to use force.
- Because there was no assault or immediate threat from Tuberville, Savage lacked justification, and the conduct was not treated as sufficient provocation to excuse or materially mitigate Savage’s violence.

## Legal Principles

- Assault requires an act and an intention that, together, create reasonable apprehension of unlawful force.
- A threat of future harm, without an imminent threat of battery, is insufficient for assault.
- Words spoken contemporaneously with a potentially threatening act must be considered with the act; words can neutralize what might otherwise appear to be an assault by showing no present intent to strike.
- Where the plaintiff’s conduct does not create reasonable apprehension of immediate violence, the defendant cannot justify a violent response as self-defense.

## Conclusion

The court held that a conditional statement indicating no present intent to use force can negate the apparent menace of a threatening gesture, defeating an assault claim and leaving a violent responder without a justification defense.


Tuberville v. Savage, (1669) 1 Mod. 3 (K.B.)