delivered the opinion of the court.
The appellant having been arrested at the suit of Hefford & Sorgenfrey, gave bail to the sheriff, and thereupon applied by petition to the parish court, for the benefit of the act of 1808, entitled “ an act for the relief of insolvent debtors in actual custody,” &c. The judge granted an order for the meeting of the creditors in open court., and directed further proceedings to be stayed. The creditors, at whose suit the appellant had been arrested, then took a rule on him, to show cause, why the surrender made by him, and the order staying proceedings, should not be quashed and set aside, on the following, among other grounds:
1. That said proceedings are irregular on their face.
2. That the said Shultz was not in prison or actual custody at the time said order was given.
The order was rescinded and all the proceedings set aside by the court, and the debtor appealed.
The act of 1808, under which the proceedings in this case were commenced, was made for the benefit, only of debtors *174in actual custody. The only inquiry therefore, is whether the debtor was in actual custody, at the time the application was made. We are of opinion that he was not. In the case of Brainard vs. Francis. 2 Martin, N. S., 150., relied on by the appellant, the debtor had been arrested on a ca. sa. and had given bond for the prison bounds. He was considered still in actual custody, although the bounds of his prison had been enlarged. But in the present case the debtor taken by virtue of an order of arrest, had been released by the sheriff on giving bond with security not to depart from the state without leave of the court. After his release he could not be said to be in actual custody, in any sense of the word. His security could not arrest him, without obtaining an order from the court, and even if he had departed from the state, the surety might discharge himself by surrendering him in execution. See case of Hudson vs. Perry et al., ante, 121.
A debtor who is arrested and gives bail, is not considered in actual custody, so ?is to entitle him to the benefit of the act of 1808, for the relief of insolvent debtors in actual custody.It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.