
    [No. 18210.
    Department Two.—
    March 15, 1894.]
    LOUIS BRAVERMAN, Respondent, v. THE FRESNO CANAL AND IRRIGATION CO., Appellant.
    New Trial—Statement—Instruction—Specifications of Error—Appeal.—Where an instruction objected to is not embodied in the stating or substantive part of the statement on motion for a new trial, but is merely incorporated in the specifications of error, coupled with the statement that it was given against the objection of the appellant, it cannot be'reviewed upon appeal, there not being a sufficient record to show that it was given or excepted to.
    Id.—Office of Specifications. —The specification of the particular errors upon which the moving party will rely, although an essential part of the statement, is the act of the attorney, annexed to the statement or bill of exceptions, for the purpose of pointing out particulars in which errors were committed at the trial.
    Id.-—Subject Matter of Specification.—The matters to which any specifications point must be found in the substantive part of the statement or bill of exceptions, otherwise they cannot be considered.
    Appeal from a judgment of the Superior Court of Fresno County, and from an order denying a new trial.
    The facts are stated in the opinion of the court.
    
      George E. Church, for Appellant.
    
      L. L. Cory, for Respondent.
   Fitzgerald, J.—

This is an action for damages caused to plaintiff’s vineyard by an overflow of water from the canal of defendant through its alleged negligence.

The case was tried by a jury, with a verdict and judgment for plaintiff. Defendant appeals from the judgment and the order denying its motion for a new trial.

The principal ground relied on by appellant for a reversal of the judgment is the alleged error of the court in giving to the jury, against its objection, a certain instruction relating to exemplary damages.

This point, however, cannot be considered, for the reason that the stating or substantive part of the statement contains no "such instruction.

The incorporation of the instruction complained of in the assignment of errors, coupled with the statement that it was given against the objection of appellant, is not sufficient to show that such instruction was given or excepted to.

The specification of the particular errors upon which the moving party will rely, although an essential part of the statement, is, as was said by Mr. Justice Harrison in People v. Faullce, 96 Cal. 219, the act of the attorney, annexed to the bill of exceptions after the trial, and for the purpose of pointing out the particulars in which errors were committed at the trial. The matters to which such specifications point must be found in the substantive portion of the bill of exceptions, otherwise they cannot be considered.”

With reference to the remaining errors complained of it is sufficient to say that they are either immaterial or untenable.

Let the judgment and order be affirmed.

Be Haven, J., and McFarland, J., concurred.  