MERITS

(A) This word is used principally in matters of defence. 2. A defence upon the merits, is one that rests upon the justice of the cause, and not upon technical grounds only; there is, therefore, a difference between a good defence, which may be technical or not, and a defence on the merits. (B) In practice. Matter of substance in law, as distinguished from matter of mere form; a substantial ground of defense in law. A defendant is said “to swear to merits” or “to make affidavit of merits” when he makes affidavit that he has a good and sufficient or substantial defense to the action on the merits. 3 Chit Gen. Pr. 543, 544. “Merits,” in this application of it, has the technical sense of merits in law, and is not confined to a strictly moral and conscientious defense. As used in the New York Code of Procedure, f 349, it has been held to mean “the strict legal rights of the parties, as contradistinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or order of the court. A “defense upon the merits” is one which depends upon the inherent justice of the defendant’s contention, as shown by the substantial tacts of the case, as distinguished from one which rests upon technical objections or some collateral matter. Thus there may be a good defense growing out of an error in the plaintiffs pleadings, but there is not a defense upon the merits unless the real nature of the transaction in controversy shows the defendant to be in the right.