Case Facts
The action before the Court of King's Bench was one of assault, battery, and wounding. The claimant, Tuberville, placed his hand upon his sword and said to Savage: "If it were not assize-time, I would not take such language from you." Savage alleged that this gesture, accompanied by those words, constituted an assault. Tuberville brought the action, and the central question for the court was whether his conduct — the placing of his hand on the sword combined with his spoken words — amounted to an assault in law.
Held
The court held that Tuberville's conduct did not constitute an assault. The plaintiff, Tuberville, had judgment in his favour. The court reasoned that his words expressly negated any intention to use force, declaring in effect that he would not assault Savage precisely because the judges were in town during assize-time. Since the law requires both an act and an intention to assault, and the words spoken made plain that no such intention existed, no assault was made out. As the court put it: "the declaration of the plaintiff was, that he would not assault him, the Judges being in town; and the intention as well as the act makes an assault."
Ratio Decidendi
The ratio of this case is that both the act and the intention must be present simultaneously for an assault to be established in English tort law. The court's precise formulation — "the intention as well as the act makes an assault" — encapsulates this dual requirement. An act that might otherwise appear threatening will not amount to an assault where the accompanying words of the defendant unequivocally negate any intention to apply unlawful force. Here, Tuberville's words operated to cancel out the apparently threatening nature of his gesture, so that no assault could be found. This principle remains foundational to the tort of assault and confirms that courts must assess the totality of a defendant's conduct, including any accompanying statements, when determining whether the necessary intention was present.
Obiter Dicta
By way of illustration, the court set out three scenarios to assist in understanding when an assault does and does not arise:
First, if one strikes another upon the hand, arm, or breast in the course of ordinary discourse, with no intention to assault, that is not an assault. The absence of intention is determinative, even where there is physical contact.
Second, if one, intending to assault, strikes at another and misses, that is nonetheless an assault. Here, the requisite intention is present, and the fact that the act did not result in contact is irrelevant to liability.
Third, if one holds up his hand against another in a threatening manner and says nothing, that is an assault. The threatening act, unaccompanied by any words negativing intention, is sufficient to establish the offence.
These illustrations confirm that words can either create or negate an assault depending on their effect upon the overall impression of the defendant's conduct. They have been widely cited in subsequent authorities on the tort of assault and continue to guide analysis of what constitutes an apprehension of imminent unlawful force. This case should be read alongside R v Ireland [1998], Read v Coker (1853), and Wilson v Pringle [1986] for a fuller understanding of the boundaries of assault in both tort and criminal law.