
    Jotham Gale vs. Michael Boyle.
    An action of debt will not lie on a bad-bond in this commonwealth.
    This was an action of debt on bond, tried before Mellen, J., in the court of common pleas.
    The plaintiff was a constable, and took the bond in that capacity, as a bail-bond, on the service of a writ in favor of one Daniel Callahan against one Patrick Lennon. The bond was signed by Lennon and by the defendant as his sole surety. Lennon having avoided, an action was brought against the officer, the present plaintiff, for taking insufficient bail, in not having two sureties to the bond; and the plaintiff offered to prove, that he had paid Callahan, on account of the breach of the bond by Lennon, the sum of fifty dollars.
    The presiding judge refused to admit the evidence, and ruled that an action of debt could not be maintained on the bond, in the name of the officer, and for his benefit, though he was the party injured ; whereupon the plaintiff became non-suit, and alleged exceptions.
    
      ■A. G. Randall, for the defendant.
    
      J. H. Mathews, for the plaintiff.
   Shaw, C. J.

A bail-bond, by the statutes of Massachusetts, is an instrument sui generis. It contains the properties of bail below, and bail above, at common law. It is in form a bond to the sheriff, but has the force and effect of bail above by recognizance. It is so far regarded as a recognizance to the creditor, that scire facias will lie upon it by him against the .bail. It is therefore treated as a recognizance of record of the court in which judgment is rendered. Debt by the sheriff will not lie upon it. Crane v. Keating, 13 Pick. 339 ; Niles v. Drake, 17 Pick. 516.

A bond to the constable is a bail-bond as much as a bond to the sheriff The rights and duties of all parties are fixed by law. The bail may at any time discharge himself by a surrender of the principal; whereas if debt would lie, he would be bound absolutely. As bail, he is not fixed, until judgment on scire facias. As debtor and obligor on the bond, he would be bound absolutely by an avoidance of the principal. The court are of opinion, that debt will not lie. The directions of the court were right, and the exceptions must be overruled.  