I dissent to so much of the opinion of the court as holds that a transferred judgment can be plead as a set- off by the assignee. It has been settled by this court that an assigned judgment cannot be plead as a set-off by the transferee, (Burwell v. Magee, 9 Ala. 433, and the cases therein cited,) and that a party cannot avail himself of a claim or debt as a set-off which he cannot sue in his own name ; and that an assigned judgment cannot be sued on in the name of the assignee. Such has been the uniform doctrine of this court.
In the case of Drake v. Mitchell et al., 3 East, 257, Lord Ellenborough, C. J., in delivering his opinion said, “a judgment recovered in any form of action is still but a security for the original cause of action, until it be made productive in satisfaction to the party; and therefore till then, it cannot operate to change any other collateral concurrent remedy which the party may have.” The other justices concurred, and Grose, J., said, “though judgment has been recovered on the bill, yet not having produced satisfaction in fact, the plaintiff may still resort to his original remedy on the contract.”
This case has been approved by this court in the cases of White v. Martin, 1 Por. 217; Keith v. Estill, 9 Por. 669 ; Spivey v. Morris, 18 Ala. 154.
In the case of Keith v. Estill, supra, this court quotes approvingly from the opinion in the case of Wyman v. *261Mitchell, 1 Cowan, 820, this sentence — “Now a judgment is in no sense a contract or agreement between the parties; it is only evidence of a pre-existing duty, obligation or agreement,” and in that case this court held that the statute of limitations then in force did not apply to judgments.
Upon these authorities, I hold that judgments are not embraced within the terms used in § 2129 of the Code, and that if a suit is brought on a judgment, it must be in the name of the plaintiff in the same.
I further hold that the terms “mutual debts, liquidated or unliquidated demands, not sounding in damages merely,” do not include assigned- judgments. But even if a party can set off a judgment in his favor when sued by the defendant therein, under the provisions of § 2240 of the Code, still it does not authorize the assignee of a judgment to do so, when he is sued by the defendant to the judgment. Such assigned judgment is not embraced within the terms used in § 2240.
§ 2241 provides that when a set-off is plead and an excess is found by the jury in favor of the defendant, that “judgment must be rendered in favor of the defendant for such excess.”
It would be a singular result to allow a defendant to have a judgment rendered in his favor on a set-off, when he could not have one if he had sued upon it.
In the case of Crawford v. Ex’r of Simonton, 7 Por. 110, this court held that a plea of set-off should disclose such a state of facts as would entitle the party pleading it to his action, if he were plaintiff in the suit;” and in the case of Bell v. Horton, 1 Ala. 413, held that a defendant cannot set-off to the plaintiff’s action a demand which he is not entitled to sue on in his own name.
In the case of Smith v. Taylor, 9 Ala. 633, it is held that a set-off cannot be made unless the party could maintain an action upon it in his own name, against the opposite party. Also, see Bowen v. Snell, use &c., 11 Ala. 379.
I do not conceive that this doctrine is overturned by the provisions of the Code, but that the principle is still applicable, and in all cases where a suit may be brought in the name of the plaintiff under those provisions, in all such *262cases covered by the above recited terms of § 2240 of the Code, a defendant may plead the same as a set-off. §§ 2129, 2240 and 2241, must be construed in pari materia, and by the principle long established by the court, that where a defendant cannot sue on a demand in his own name, he cannot plead it as a set-off.