Tuberville v. Savage (1669)
Upon being insulted by Savage (the defendant), Tuberville (the plaintiff) placed his hand on his sword and said “If it were not assize-time, I would not take such language from you.” In response, Savage attacked Tuberville, causing him to sustain injuries. Tuberville brought an action against Savage, who pleaded to have been provoked by Tuberville’s statement.
1. Whether or not Tuberville had assaulted Savage with his action and statement.
1. Tuberville had not assaulted Savage.
For an act to constitute an assault, there ought to be an intention and an act to cause injury or damage to another. The plaintiff’s statement on the actions he would have taken had it not been assize-time was indicative of his lack of intention to cause damage to the defendant at the time the statement was made. Therefore, his statement revealed he did not have the intention to cause injury to the defendant despite the act of placing his hand on his sword.