Majority
p. 38Remsen, Administratrix, against Isaacs. In King v. Hughes it was determined, that if a motion be made as non-enumerated for irre[*23] gularity, the Aground of merits must be abandoned, though on the merits the irregularity may be insisted on.
Headnote
On a non-enumerated motion for irregularity, merits cannot be entered ictq but on merits irregularity may be shown.Mulligan moved to set aside a report of referees fat irregularity and on merits.
Woods, contra.
The rule is according to the decision cited. The application must be for irregularity only to bring it on
p. 39
as a non-enumerated motion. If merits are united, it becomes enumerated.[1]
Motion denied.
(a) (a) S. P. Foden and Slater v. Sharp, & Johns. Rep. 183. .