Ellis v. Cothran

Citations

• 117 Ill. 458
• 3 N.E. 411

Syllabus

<p>1. Set-off—defendant holding the affirmative in respect thereto. In pleading a set-off, the defendant assumes the position of a plaintiff, and, in .order to recover, is required to prove the same facts which he would be required to prove if he had brought an original action on his demand.</p> <p>2. Same—as'to the time when a right of action on the cross-demand must have accrued. A defendant can not recover on a matter by way of set-off when his claim or demand was not due at the time the plaintiff brought his'action; nor can he, after suit brought, purchase a demand against the plaintiff and set it up as a defence.</p> <p>3. Action—when aright of action accrues—in respect to the settlement of mutual• accounts. When the accounts between a commission merchant and his principal are closed, and the former, closes out the purchases and sales made for the latter, though before the time for delivery, and renders to the latter an account showing the transactions between them as closed, the rights of the parties will thereby be fixed, and whatever sum growing out of their transactions coining from the one to the other, will become due, and the same may be recovered by action or by way of set-off..</p>