The principle of the ancient common law, that a debt not negotiable, is a mere right of action, which the creditor has against his debtor, and that it is incapable of assignment, is so far regarded in modern times, as that the assignment is looked upon rather as a power of attorney authorizing the assignee to sue for, and recover it, in the name of the assignor, than as such a transfer as will be of any benefit to the assignee in a court of law. It follows, from this, that had we no statute upon the subject, the suit, in this case, must not only have been commenced in the name of Wright*the payee of the bond, but it must have been prosecuted in his name also, if, indeed, it could have been prosecuted at all, after he ceased to be judge of probate. But it is not denied, that by our statute authorizing judges of probate to take bonds of administrators and executors, payable to them and their successors, and by the statute authorizing the successor of any judge of probate in whose name any suit on a probate bond may be pending, to enter and prosecute the same, in his own name, in the same manner as his predecessor might have done, had he continued in office, (Slat. 228, 9, 80. ed. 1838.) this suit might well be prosecuted in the name of any successor of Wright, who is not in the condition of the plaintiff in error, one of the obligors in the bond; *108and yet there is no statute, which, in express term's, authorizes -this. The statute under which this bond was taken, like that regarding guardian bonds, does not direct, that the bond shall be made payable to the judge of probate and his successors. It merely enacts, that the trustees shall give bonds, with surety, to the judge of said court. {Slat. ed. 1838, p. 301.) It is not, then, because of the express provisions of this statute, that the successor of Wright might sue upon this trustee’s bond; but it is because the case comes within the reason and spirit of the statute regarding executors’ and administrators’ bonds; and being within the mischief which was intended to be remedied, by the provision authorizing those bonds to be taken, payable to the successors of the judges of probate, they are also to be held to be within that provision ; especially,'since the act of 1838 authorizes the successor of a judge of probate to enter and prosecute any suit pending on a probate bond. Judges of probate are understood to be in the practice of taking all official bonds to them and their successors; and that these statutes authorize them to do so. has never been doubted by any one, and is not denied or doubted by the plaintiff in error in this case. On the contrary, he admits, that by virtue of the act of 1839, p. 37. Ruxsrll might bring a suit upon this bond ; yet he insists, that he is not authorized, by that act, or any other, to enter and prosecute, in his own name, a suit previously brought by Wright. But the act of 1839 does not authorize a suit to be brought in the name of the judge of an adjoining district, in any other case, than in that of an administration bond ; and it requires the same liberal construction of that act, to say, that by administration bond, is meant, not merely a bond given 1>\ an administrator, but also an executors and a trustee’s bond ; and doubtless would be holden to mean any bond authorized to be taken by a judge of probate, in order to enforce the performance of any official duty, as it does to say, that when that act speaks of the right of any person interested in a probate bond, to bring their action, it means to authorize, not merely the commencement of a suit, but also the prosecution of it; and the prosecution also of any suit previously commenced,in all cases where the successor of the judge, in whose name the suit was commenced, is one of the obligors in the bond. The object of the act was, to give to the judge of an *109adjoining district the same powers, in the cases provided for by it, that the successor of the judge to whom the bond was , given would have had, if he had not been one of the obligors in the bond.

Again, in giving a construction to the act of 1839, we must take it in connexion with the act of the year previous, which authorizes the successor of any judge, in whose name any suit on a probate bond may be pending, to enter and prosecute the same in his own name, in the same manner his predecessor might have done, had he continued in office; and, construing these two acts together, we do not think it any strained construction, to say, that for the purposes of this, and all oilier cases similarly situated, Russell is the successor of Wright, within the meaning of these acts. A different construction, while it would be the means of delay in the recovery of this debt, could yet be of no possible benefit to any body. The moment after the cause was out of court, Russell could commence a new suit, and prosecute it to final judgment. Such a result, it was the obvious design of the acts of 1838 and 1839 to provide against; and we do no more than carry out this design, by the construction we have given to those acts.

It was made a question, by the defendant in error, whether the objection to the prosecution of this suit in the name of Russell, could be taken advantage of, by writ of error. The result to which we have come does not make it necessary to determine this question. Still, as the question was made and argued, we have no hesitation in saying, that if there was no other difficulty in the plaintiff’s case, we do not think this objection ought to prevail. The suit was prosecuted in the name of Russell, as the plaintiff, instead of Wright; and this appears of record. The verdict and judgment are in fa-vour of Russell. The bond was not payable to him ; and this appears also of record, because, by the pleadings, it is made a part of the case. If, then, the plaintiff' in error was right in supposing that Russell could not enter and prosecute the suit in his own name, then it would appear, that he had obtained a verdict and judgment to which he has no more right than any stranger. We- have no doubt that this might be *110corrected, and the judgment reversed, by writ of error. But as there is no error, the judgment of the superior court must be affirmed.

Judgment affirmed.