¶1This suit originated in justice’s court, and *301was begun by warrant. The affidavit on which the warrant issued is as follows :
“ State of Miohiga/n, Shiawassee Cou/nt/y:
SMawassee County. — Alcyon D. "Warren, of said county, being duly sworn, deposes and says that he has, as he has good reason to believe, a just cause of action against Clark Crane, of said county, against whom he applies for process by warrant for maliciously, wantonly and willfully going upon the land of this deponent and cutting down and carrying off one oak tree, the property of this deponent, and converting the same to his own use; of the value of $25. And further deponent saith not. .A. D. Warren.
Sworn to and subscribed before me, this Tth day of January, 1883
Charles Holman,
Justice of the Peace.”
¶2On being brought before the justice the defendant moved to quash the proceedings for defects in the affidavit, but the motion was overruled. He then asked and obtained time to plead, and on a subsequent day pleaded to the merits, and a trial was had resulting in a judgment for the plaintiff. This judgment was removed to the circuit court by special appeal, and there affirmed. The principal error relied upon in the appeal was the denial of the motion to quash. The case is now brought to this Court by writ of error.
¶3No attempt is madehn this Court to support the affidavit; but it is contended that the defects in it became immaterial, and all right to take advantage of them was waived when the defendant pleaded to the merits. We do not think so. Waiver is a voluntary act, and implies an election by the party to dispense with something of value, or to forego some advantage which he might at his option have demanded or insisted upon.' But that action is in no sense voluntary which a party cannot decline to take except at the peril of liberty or property, as was the case here. The defendant made his objection and was overruled: if he persisted in it after-wards he would have stood undefended in the case, and might have been kept in confinement until judgment. It would be unreasonable to compel a party to submit to this *302as tbe condition, on which he should be allowed to question the unlawful arrest. Brown v. Kelley 20 Mich. 27 is directly in point. And see Matter of Stephenson 32 Mich. 60. It_ is mentioned as a fact which distinguishes this case, that in this the defendant was not detained in custody during the time given him for pleading. The record does not show what was the fact in this regard, nor is it material. The defendant was constructively in custody all the time, and might at the option of the officer have been actually confined.
¶4The judgment is erroneous and must be set aside, with costs of all the courts.