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Tuberville v. Savage

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    Bloomberg Law

    Citation. 86 Eng. Rep. 684 (K.B. 1669).

    Brief Fact Summary. Plaintiff put his hand upon his sword and said to Defendant, “If it were not assize-time, I would not take such language from you.” Defendant sued Plaintiff for assault.

    Synopsis of Rule of Law. Threats of some future harm are insufficient to constitute the tort of assault.


    Facts. Plaintiff put his hand upon his sword and said to Defendant, “If it were not assize-time, I would not take such language from you.” Defendant sued Plaintiff for assault.

    Issue. Did Plaintiff assault Defendant?

    Held. No. Judgment for Plaintiff.
    * The intention to assault coupled with the act makes an assault. For example, if someone strikes the hand, arm, or breast of another while talking to him or her, there is no assault because the actor did not intend to assault. However, if someone intended to assault another and struck at but missed him or her, it would constitute an assault. If someone held up his hand against another in a threatening manner but said nothing, it would constitute an assault. In this case, Plaintiff did not assault Defendant.

    Discussion. Threats of some future harm are insufficient to constitute the tort of assault. An assault is the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery. In this case, Defendant put his hand on this sword. The act requirement of a claim for assault has been satisfied. The reason why Defendant is not liable to Plaintiff for assault in this case is because of the words spoken by Defendant to Plaintiff. Defendant’s statement did not reflect an immediate attack. His words implied an attack in the future, it at all. Assault requires an immediate apprehension of a battery. In this case, Defendant did not express a wish or intent to commit an immediate battery. Thus Plaintiff may not maintain an action against Defendant for assault.


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