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 *139be 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.