In this case the defendants seek to carry the doctrine “cm bono?” (Why require a useless act?) farther than is done in either Bunting v. Wright, Phil. 295, or McKay v. Ray, ante, 47. It now becomes necessary to construe the Attachment Act, Rev. Code, ch. 7, in connection with the Act of 1866-67, and to determine how far the former is affected by the latter.

The above cases, however have cleared off the ground, and make it much easier to decide the question now presented, than if it had been sprung upon us before any construction had been put on the act “ To abolish imprisonment for debt. ” *61 It is decided by McKay v. Bay, that the case of a nonresident debtor does not come within the proviso set out in sec. 2 of the Act of 1866-67. The next question is, does the 1st section of that Act embrace the case of a debtor, whose property has been seized by attachment ? The enactment is, “ From and after the passage of this Act, it shall not be lawful to arrest or imprison any person upon an original writ for debt, ” &c. It is clear that the expression, “ original writ ” is not used in the sense given to it in the English books, for there it means a writ issuing out of the Court of Chancery in order to institute a suit in some one of the Courts of general jurisdiction, to-wit: the Court of King’s Bench, Common Pleas, or Exchequer, and to summon the party to appear, &c, 3 Bl. Com.

The “ original writ ” has become obsolete in England, and was never used in this State; so we must take the Act to mean, “ the mesne process ” by which a party is compelled to appear and answer an action. In the King’s Bench this was by capias ad respondendum, in the Common Pleas it was by attaching the property. Upon entering an appearance the defendant was required to put in bail to the action, or go to jail. In this State the mesne process was a capias ad res-pondendum, which is styled in the Act of 1866-67 the original writ. Under it the Sheriff arrested the defendant, took hail to the writ to compel appearance, and converted it into “ bail to the action, ” by assigning the bail bond.

The object of the attachment, authorized by Rev. Code, ch. 7 (which is usually called an original attachment, so bringing it within the words “ original writ for debt,”) .was to gi-ve a remedy when the capias ad respondendum, the ordinary process, could not be served because “ the defendant was a non-resident, or concealed himself, ” &c. Th's was effected by seizing the property of the debtor, so as to compel him to appear and give hail to the action : in which case, the object being accomplished, the property was discharged and restored to the debtor, in like manner as the bail below taken under mesne process (in the King’s Bench) *62 and the property attached under the mesne process (in the Common Pleas) was discharged by appearance and giving bail to the action. So it is manifest that the writ of attachment authorized by the Rev. Code, oh. 7 is only a substitute for the ordinary process, to- wit: a capias ad respondendum by which to compel a party to appear and give bail to the action; and that upon appearance and giving bail he stood on the same footing, whether brought in by capias or by attachment.

The effect of the Act of 1866-67, in the view we are now taking of it, is to abolish the ordinary process by capias for debt, and prrt in its place a summons. If the defendant does not appear, the plaintiff takes judgment by default, and, under fieri facias, sells his property. If the defendant does appear, he is allowed to enter his pleas and defend, without giving hail to the action. It follows asa necessary consequence, that the Act has the further effect of so modifying the process of original attachment (which, as we have seen, is only a substitute for the process by capias) as to allow it to serve the purpose only of compelling the defendant to appear. If he does not appear, the plaintiff takes judgment by default and sells his property; if he does appear, he is allowed to enter his plea without giving bail to the action. For, as was forcibly argued by Mr. Bailey, why give bail to the action ? Gui bono ? for the bail are instantly entitled to have an exon-eretur entered on the bail bond, inasmuch as the principal, if brought into Court and surrendered, could not be imprisoned for the debt, and the plaintiff has had the benefit of his attachment, by compelling an appearance, so as to enable him to proceed to judgment.

The reply made by Mr. Merrimon is, If the bail should bring the non-resident debtor into Court and surrender him, the plaintiff could then enter a non-suit, and take out another writ; and by making the affidavit, under the proviso in the 2nd section, that the debtor “ was about to remove,” &c., which he would then be able to do, could have a capias ad respondendum, and force him to give bail to the action. *63 In other words, the first action is not for the purpose or under the expectation of getting judgment; but to force the debtor to come into the State, and give the creditor a chance to take a better hold of him, in a second action.

There is no principle of law to support such a practice, and it would be a violation of all principle for the Courts to give countenance to it.

It is asked, What is a creditor to do ? A non-resident debtor, if not required to give bail, may enter his pleas and contest the cause of action and then remove his property while the action is pending! We can only say, it is the province of the Courts to expound the laws, not to make them.

His Honor erred in declining to allow the defendants to enter their appearance by attorney and make defense, without a replevin bond.

This must be certified.

Per Curiam. There is error.