Court case(1669) 1 Mod 3

During a quarrel between the parties, Tuberville laid his hand upon his sword and said to Savage, "If it were not assize-time, I would not take such language from you." It was in fact assize-time: the King's judges were in the town to hold the assizes. Savage then attacked and wounded Tuberville, who sued him for assault, battery and wounding. Savage justified his attack as self-defence, pleading that Tuberville had first assaulted him by the gesture with the sword. The question was therefore whether that gesture, accompanied by those words, was an assault.

The court held that Tuberville's act was not an assault, so Savage's plea of self-defence failed. An assault requires an intention to do harm together with an act showing it. Tuberville's own words showed that he did not intend to strike, because it was assize-time; laying his hand on his sword, explained by those words, therefore conveyed no threat of immediate violence. "The intention as well as the act makes an assault": if one strikes another upon the hand, arm or breast in discourse, it is no assault, there being no intention to assault; but if one, intending to assault, strikes at another and misses him, that is an assault.