Levy v. Roberts

12 S.C.L. 395

Opinion

The defendant, paying money over to the sheriff, on an execution, cannot be considered as paying it voluntarily ; and if improperly paid, the sheriff, upon a rule may be ordered to pay it back.

Where the plaintiff’s demand has been reduced by actual payments, to a sum within the Summary Process jurisdiction, he must proceed by way of Summary Process for the balance ; and if he bring his action for the Vkhole, he can recover only the costs of a Summary Process. But it is otherwise where there are mutual demands, and the plaintiff's debt is reduced by discount; because he may not know the amount of the defendant’s demand; neither can he know that he will avail himself of such defence.