By the Court, Rhodes, J.: The second instruction given to the jury at the plaintiff’s request is as follows: “Should the jury find from the testimony that Bradford ever had any interest or title in the property, they may take into consideration whether he had divested himself of such title, either by abandonment or otherwise.

The question of abandonment is one of intention, of which the jury are the exclusive judges; and in order to determine such intention, they must take into consideration all the facts and circumstances before them; and if they find that Bradford stood by and saw Davis make a sale of the ditch to plaintiffs or their grantors, and made no objection or asserted any title in himself, he is bound by the sale.” The instruction is, in our opinion, objectionable.

It mingles together, in such manner as to mislead the jury, two legal propositions which are quite distinct and proceed on different principles—abandonment and estoppel in pais. It appears to treat an estoppel in pais as constituting an element of abandonment, or as one of the circumstances from which it might be found by the jury. But a party cannot be held as estopped by matters in pais, to assert title, unless at the time when it is claimed the estoppel was worked, he held the title. If he then held such title, it cannot at the same time be claimed that he lost it by abandonment.

The testimony of defendant, Bradford, as to matters which transpired before the death of Davis, was objected to by the plaintiff on the ground that they are the representatives of Davis within the meaning of

section three hundred and ninety-three of the Practice Act. They claim title, as we understand the case, through two deeds: The deed of Davis and Bingham to Tie Hoon and Ah Sing, and the deed of Ah Young and Ah Gee to plaintiff, Marquart. The testimony is not sufficient to show that the grantees in the first, and the grantors in the second deed are the same persons. It not appearing that the plaintiffs were the representatives of Davis within the construction of that section, as given in Davis v. Davis, 26 Cal. 23, the objection to the testimony should have been overruled. Judgment and order reversed and cause remanded for a new trial.