¶1Take your rule, that one only of the two pleas be allowed, and that the defendant, within four days after notice of the rule, elect, or in his default the plaintiff may elect, which of the two pleas shall stand, and that the other be struck out.
¶2 In this case, the two pleas required different trials, the former by the record, and the latter by the county, and, therefore, could not be tried together. See Coleman’s Cases, 35, 73, but since the Revised Statutes, vol. 2, p. 409, § 4, the issue of nul tiel record must be tried by a jury. Trotter v. Mills, 6 Wend. 512; and see Weatherwax v. Averill, 6 Cowen, 589.