*145The opinion of the court was delivered by

I. The respondent was improved as a witness in his own behalf, and after his examination in chief had been completed, and the witness turned over for cross-examination, the respondent’s counsel inquired of him if O’Neil was a man of violent and ungovernable temper, which was objected to, and the objection sustained. The inquiry was out of time, and the question addressed to the discretion of the court. No exception will lie to the exorcise of the discretion of a court. The exceptions state that respondent’s counsel did not ask to question the witness on that subject after the cross-examination was closed. It is clear, from the statement of the exceptions, that the inquiry was refused on the ground of its untimely exercise, and riot on the ground that the question was not legally proper if it had been seasonably made.

II. It appeared that O’Neil had been accustomed to get water from the brook near the highway for more than twenty years under a claim of right, and that O’Neil had fenced out the brook a few days before this transaction, at the point where respondent had been accustomed to get water.

The respondent’s counsel requested the court to charge the jury that the respondent had a right to get water at that place, and having such right, he could lawfully use sufficient force to overcome O’Neil’s opposition to his getting water at the accustomed place; which the court declined to do.

The defence was put solely and exclusively on the ground of lawful self-defense by the respondent against an assault made upon him by O’Neil, and in no part or respect that what he did to O’Neil was in the assertion or defence of his right to get water from the brook at the place in question.

The respondent’s evidence tended to prove that O’Neil struck him in the highway with a cudgel, and that what he did was in defending himself against such assault.

It docs not appear that it was claimed that the assault of O’Neil, if made, was not unlawful, nor that the respondent might not use all necessary force to repel it.

*146Tho right of the respondent to defend his person against an unlawful assault, would not be enhanced if it should be proved that he was also defending his right of prope-rty. The greater would include tho less. Tho respondent had the right, clearly, to repel the assault of O’Neil, and use sufficient force to protect himself from harm. He could use no more force if maintaining his right to the water in the brook. As the case is stated in the exceptions, we do not think it error that the court refused to charge as requested. Not that the request did not call for sound law ; but that (lie case as it was tried, and as it stood before the jury, did not require it, however sound tho principle of law which was invoked.

The result is, that the respondent takes nothing by his exceptions ; and the sentence of a fine of $100 and costs by the County Court is affirmed.