Tuberville v Savage (1669) 2 Keb 545

Facts

  • The defendant, during an altercation, placed his hand on the hilt of his sword and stated to the claimant, “If it were not assize-time, I would not take such language from you.”
  • The statement was made while justices of the assize were present in town, indicating a period of legal oversight.
  • The claimant asserted that the defendant’s gesture and words together constituted an assault.
  • The main issue was whether the combination of the defendant’s conduct and statement created a reasonable apprehension of immediate unlawful force.

Issues

  1. Whether the defendant’s act and words together constituted an assault in law.
  2. Whether an immediate threat of unlawful force was present given the defendant’s verbal qualification.
  3. Whether the defendant possessed the requisite intention to commit assault.

Decision

  • The court determined that there was no assault because the defendant’s words negated any intention to use immediate force.
  • The statement indicated that any potential for violence was expressly conditional on the absence of assize-time, negating immediacy.
  • Without both an intention to cause apprehension and the prospect of immediate unlawful force, assault was not made out.

Legal Principles

  • Assault requires an act that causes another to apprehend immediate and unlawful force, combined with the requisite intention.
  • Words may negate the effect of an otherwise threatening gesture, thereby removing liability for assault if they nullify any immediate threat.
  • Context and the surrounding circumstances, including both words and actions, must be considered when determining immediacy and intent in assault.
  • Assault differs from battery and false imprisonment: assault concerns apprehension of force, battery the actual application of force, and false imprisonment the unlawful restraint of movement.

Conclusion

The judgment in Tuberville v Savage demonstrates that for assault to be established, there must be both an actual intention to cause apprehension and an immediate threat of unlawful force; words can negate a threatening gesture, defeating liability in law.

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