Garmany v. Shaw

“Where property levied on has been released on a forthcoming bond and is not produced on the day of sale, the plaintiff in fi. fa. has two remedies. He can proceed directly against the sheriff by an action on the case, or by rule; or he can bring suit upon the forthcoming bond, either in his own name or in the name of the sheriff for his use, provided that he has ratified the action of the sheriff in accepting the bond where it was taken without the consent of the plaintiff in fi. fa. These two remedies are inconsistent, and where the plaintiff in fi. fa. elects to sue on the forthcoming…