Tuberville v. Savage – Case Brief
Tuberville v. Savage, 1 Mod. Rep. 3, 86 Eng. Rep. 684 (1669).
Facts: Tuberville put his hand upon his sword and said ‘If it were not assize-time, I would not take such language from you.’ Savage sued Tuberville for assault.
Issue: What are the elements of the tort of assault?
Holding and Rule: To be liable for assault at least one of the following must be present: 1. an act intending to cause harmful control to another person, or imminent apprehension, or 2. a third person put in apprehension if he believes the person can do damage. An assault exists even if the other party can defend against the action and the action is not inevitable. Mere threats of future harm are insufficient.
In this case the court held that the declaration of Tuberville was that he would not assault Savage at that point in time. To commit an assault there must be intention followed by an act. An assault is present if the fear is reasonable. The court held that in this case there was clearly no intention of assault.
Disposition: For Tuberville.
Notes: Threats of future harm are insufficient to establish assault. Conditional threats may suffice where the defendant has no privilege to assert them.