Field, C. J. concurring.
This is an action to recover of the defendant, as administrator of the estate of James E. Birch, deceased, the value of certain horses and mules which, it is claimed, were purchased by the latter. It was proved at the trial that the animals were purchased for the use of the Overland Mail Line; and the Court instructed the jury that, under the evidence, Birch was to he considered the sole *378proprietor of that line. We have repeatedly held that an instruction of this character is in violation of the constitutional provision prohibiting Judges from charging juries with respect to matters .of fact; but we have also held that where no other conclusion could be arrived at upon the evidence, the error will not be sufficient to justify a reversal. (Terry v. Sickles, 13 Cal. 427 ; Caulfield v. Sanders, 17 Cal. 569.) There is no evidence in this case adverse to the correctness of the instruction in point of fact, and the error committed could not have operated to the prejudice of the defendant.
The plaintiff was entitled to interest from the time of the presentation of his demand. The claim was a legal and valid% charge upon the estate, and when presented, the defendant should have indorsed upon it his allowance. He could not, by refusing to do so, deprive the plaintiff of his right to interest; and a subsequent recovery by the latter must be regarded as tantamount to an allowance at the time. There is nothing in the other points made.
Judgment affirmed.