The court held that a conditional threatening statement, without an imminent threat of harm, does not constitute an assault.
In response, Tuberville grabbed the handle of his sword and stated, "If it were not assize-time, I would not take such language from you."
The Court considered the language used in the statement and found that Tuberville did not express any intention to do any harm to Savage in the given circumstances.
Tuberville's expressed words indicated that he was not going to harm Savage because the justices of assize were in town, and his laying his hand on his sword was to be interpreted in conjunction with those words, namely as an indication or description of what he would have done were the judges not nearby.
Therefore, Tuberville's conduct was insufficient to put a reasonable person in Savage's situation in apprehension of immediate violence, as it involved neither a subjective intent to do so nor an act reasonably construable as doing so, at least one of which would have been required for Tuberville's action to constitute an assault.