majority">McBride, J.,

delivered the opinion of the Court.

This was an action of debt brought by McDermott in the Court of Common Pleas of St. Louis county, against John Doyle. The bond upon which the suit was instituted was given by Samuel A. Childs, and the defendant, Doyle, as his security, in an action of detinue brought by Mc-Dermott against Childs, in the Circuit Court of St. Louis county, and was conlitioned according to the second section of the act concerning the action of detinue. R. C., 1835, p. 224. In the action of detinue, McDermott recovered judgment against Childs, who failed to deliver the property sued for, and this action is on that bond against Doyle, as the security.

The declaration contained several counts. The defendant pleaded several pleas thereto, when the plaintiff asked and obtained leave to amend his declaration by adding several additional counts, to which the defendant filed his pleas. No issue was taken on the pleas, but the parties went to trial, when the plaintiff took anon-suit with leave to move to set the same aside, which he did, but the court overruled his motion and he excepted.

The plaintiff was driven to take a non-suit, because of the following decision of the Court of Common Pleas :

“The court decides that the bond sued on in this case is void, because there is not any affidavit to authorize the suing out of the capias in the case in which it was issued.”

The affidavit states “that Roger McDermott, plaintiff in the foregoing declaration, is the lawful owner of a negro boy slave named Austin, in said declaration embraced and described^ that the defendant in the said declaration, Samuel A. Childs, unlawfully detains the said negro boy *446slave from the said rightful owner; that the said slave is worth $600.

The declaration in the detinue suit of McDermott against Childs states that “Roger McDermott, plaintiff, complains of Samuel A. Childs, defendant, of a plea that he render unto him certain goods and chattels, to-wit: One negro boy slave, named Bob, about thirty five years of age, &c,” and throughout charges the defendant with unjustly detaining from him the said slave Bob. The difference in the name of the slave as set out in the declaration and the one described in the affidavit, rendered the bond inoperative in the opinion of the Court of Common Pleas. The opinion of that court on this point, we are inclined to think was erroneous. If the affidavit was defective for the above cause, the principal in the bond should have taken advantage of it at the proper time, and having failed to do so it is questionable whether the sucurity can avail himself of any benefit therefrom, There is in judicial proceedings as well as in all other transactions of life, a proper time for action, and it frequently happens if that period is permitted to pass without the necessary steps being taken, all future action on the subject is precluded. If the defendant omitted to take advantage of the discrepancy in the name used in the declaration and affidavit at the proper time, he thereby waived his right and cannot afterwards do so, and we see no reason to place the security in a position more advantageous.

Admitting the Court erred on this point, the question is, can the plaintiff recover in this action? "We apprehend not, and for two reasons: first, the pleas of the defendant remained unanswered at the time of the trial, and upon principle, operated as a bar to his recovery; and secondly, the bond was given in the Circuit Court, and suit should have been instituted on it in that court, unless the party suing was prevented from instituting his suit in that court.

The action on the bond, for a breach thereof, is virtually a continuance and part of the original detinue suit, and to permit the plaintiff to sue on the bond in the Court of Common Pleas, would be to permit him to divide his action, and prosecute one branch of it in the Circuit Court, and the other in the Common Pleas. On this point the authorities are very abundant. See Tidd, 823; 2 Black R. 838; 1 Burr, 642; 3 lb. 1923; 13 John. R. 424; 6 Wend. R. 327.

For the foregoing reasons, the judgment of the court below ought to be affirmed.

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