In this case a suit was brought in a justice’s court for trespass on lands, and the defendant Deens was-arrested on a warrant.
Plaintiff declared in trespass for damage to the land, and. defendant, appearing by attorney, put in the general issue with notice that it was his own close and freehold. He made no claim and filed no bond to transfer the cause to the-circuit, and a trial was had and damages were recovered against him.
*37He then took a special appeal, alleging as special grounds tlie insufficiency of the affidavit on which the warrant issued, .and error in the decision by the justice that the affidavit was in accordance with law. The circuit court of Bay county reversed the judgment on this ground.
Hpon examining the justice’s return as appearing in the record in this court it does not appear that the defendant ever objected before the justice to the sufficiency of the affidavit or to the regularity of his arrest. No motion or objection of any kind, or for any purpose, was made before the magistrate, and the only action he took was in trying the issue raised by the pleadings.
The statute concerning special appeals does not contemplate the review by the circuit court of errors which do not involve some decision by the justice, either express, or implied in the exercise of jurisdiction. Comp. L. § 5432.
We must assume that the justice’s return contains all that occurred before him. If defective a further return should have been required. By going to hearing on it the party signifies that he is content with it. Case v. Frey, 24 Mich. 251.
The general rule is that a party who joins issue and goes to a hearing on the merits, waives objections to the process, unless he distinctly makes them known in some way. While much allowance is made in favor of parties under arrest, and a waiver of objections will not be hastily assumed, yet it would be dangerous and misleading for a party to lie by indefinitely and submit himself without some kind of protest to a trial on the merits, and then rely on an objection ■that lie has a right to waive if he chooses. Moreover the ■affidavit setting up grounds of appeal rests on an alleged •decision of the justice which we must assume on this record was never made. We think the defect in the affidavit was waived by going to trial and judgment, without at any stage of the cause bringing the matter to the attention of the justice. Hart v. Blake 31 Mich. 278; Manhard v. Schott 37 Mich. 234; Gott v. Brigham 41 Mich. 227.
*38In holding this we do not hold that the consequence would be to maintain any right q£ arrest now or hereafter founded on the affidavit. That is only one means of enforcing the judgment, and depends on matters collateral to the issue on the merits. The affidavit in this case* contains no facts whatever and the circuit court was clearly right in so holding. But as already suggested, we do not think this affects the issue on the merits.
The judgment dismissing the case must be reversed with costs, and the cause remanded for trial.
The other Justices concurred.State of Michigan, County of Bay, ss.
Andrew O. Maxwell being duly sworn deposes and says that he is agent for Robert Maxwell, and makes this affidavit in his behalf. Deponent further says that said Robert Maxwell has a good cause of action as deponent verily believes against James Deens, against whom deponent applies for process of warrant, in behalf of said Robert Maxwell for trespassing on the lands of said Robert Maxwell in Bangor in said county, to an amount not exceeding- one hundred dollars, and that he has full knowledge of the facts here set forth, and further says not.
Andrew C. Maxwell.
Sworn and subscribed before me this 6th day of May, 1880.
Daniel Mangan,
Justice of the Peace.