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.

*645The 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.