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. Id. 545; 1 Burrill, Pr. 214; Rahn v. Gunnison, 12 Wis. 529; Bolton v. Donovan, 9 N. D. 575, 84 N. W. 357; Ordway v. Boston & M. R. Co., 69 N. H. 429, 45 Atl. 243; Blakely v. Frazier, 11 S. C. 134; Rogers v. Rogers, 37 W. Va. 407, 16 S. E. 633; Oatman v. Bond, 15 Wis. 26. As used in the New York Code of Procedure, 5 340, 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 favor of the court.” St. Johns v. West, 4 IIow. Prac. (N. Y.) 332. A “defense upon the merits” is one which depends upon the inherent justice of the defendant’s contention, as shown by the substantial facts 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 plaintiff’s 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.
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