The Code (§ 1887) declares, that, “in any action against an executor or administrator, commenced after the death of the testator or intestate, if the plaintiff fail to prove a presentation of the claim or demand, he must pay the cost of suit, although he may recover.” Section 2875 declares, that “ the successful party, in all civil actions, is entitled to full costs, for which judgment must be rendered, unless in cases otherwise directed by law.” By the section first named, a fact is required to be proved, as an essential prerequisite to a judgment for the costs. Before whom must it bo proved, and who is to determine whether it is proved, — the judge, or the jury ? The statute is silent on this subject. We arc satisfied that the jury should try the fact of presentation. It may often be a fact of more importance than the proof of many items of the demand, since it involves a greater loss to the party by so much as the costs exceed those items. It may be strongly contested, and the proof conflicting. Now it is against the course of the common law to make the judge the trier of facts, making his determination the predicate for a judgment, as would often happen, for large sums of money. The judge, unless otherwise directed by statute, decides the law, and the jury find the facts.
Again, this section was not designed to force upon the parties an issue, irrespective of their concessions by the pleadings, and thus to entail upon estates the superadded cost of witnesses to prove presentation of demands, when the fact of presentation was not controverted upon the trial.
The obvious design of the statute was, to prevent estates from being mulcted into costs, an account of demands which *285would have been paid or arranged without such costs, had they been presented to the personal representatives of decedents. It was to save, not to superadd costs; and the statute being silent as to the mode in which the matter of presentation shall be tried, it is our duty to mould the practice so as to effect the end intended tobe accomplished. The judgment must be predicated upon the verdict of the jury, which verdict, whether general or special, must ascertain sufficient matter of fact to enable the court to pronounce, as a conclusion of law, for whom and for what the judgment must be rendered. In this case, the verdict is general, and, by reference to the issues educed by the pleadings, involves no determination or finding upon the question of presentation.
If the administrator intended to raise a question of that sort, he should have presented it by a suggestion or plea in bar of the cost, upon the record, with his other pleas, so that the opposite party would have had an opportunity of proving that the claim or demand had been duly presented before the suit was instituted. If he merely wishes to controvert the claim or demand upon its merits, then he may omit such suggestion or plea, and save the estate, in the event it is cast in the su'it, the expense of the witness or witnesses by whom such fact could have been established. Nothing of the kind was done in this case. The verdict and pleadings warranted the judgment for the damages found by the jury, which finding, under section 2375 of the Code, above referred to, entitles the successful party to full costs.
It results from what we have said, that the judgment for damages and costs was correctly entered upon the finding; that the court, upon motion, improperly set aside the judgment as to the costs and rendered it against the plaintiff; and that this last judgment must be here reversed, and the proper judgment, conforming to that originally entered, here rendered upon the verdict.