Atkinson, Justice.
The facts are stated in the official report.
1. To enter upon the unenclosed lands of another without his consent and dig and grade a public street or alley is not a criminal offense under the law of this State, so far as we are advised or can ascertain, and is therefore not an indictable trespass. It gives to the person injured ajfight of ac*17tion civilly, but upon proof of such facts no conviction could be had as for a crime or misdemeanor; and hence an affidavit upon which a warrant issued for the apprehension of a given person, which did not allege more than that such person committed a trespass “by dig’ging up and grading a certain street or alley through the lands” of the person making the same, neither charged the person who was alleged to have committed the act with the violation of a public law involving the commission of an indictable offense, nor with the commission of any act amounting to a constituent element of such an offense. • A warrant based upon such an affidavit, commanding the apprehension of the person so accused, was void altogether, was a mere “brutum fv-lmen,” and the two combined did not together amount to the institution of a criminal prosecution against the person against whom it was directed.
2. It is a prime requisite to the institution of an action for malicious prosecution, that a prosecution should have been instituted and ended; that the person alleging injury should have been prosecuted upon some criminal charge. Code, §2982, which gives the right of action upon which the plaintiff bases his right to recover in the present case, limits the right to sue to criminal prosecutions maliciously instituted; and hence it follows that if no criminal prosecution was in fact instituted, then no action would lie. If the proceeding instituted was void in toto as wanting in any of the constituent elements of a proceeding authorized by law, then it was no prosecution. In Frierson v. Hewitt, 2 Hill (S. C.), 499, the distinction between malicious prosecutions proper, and those which bear only a resemblance to such proceedings, is very clearly stated as follows: “The indictment must charge a crime; and then the action is maintainable per se on showing a want of probable cause. . . There is another class of cases which are popularly called actions for malicious prosecution, but they are misnamed; they are actions on the case in which both a scienter and a *18per quod must be laid and proved. I allude now, first, to-actions for false and malicious prosecutions for a mere misdemeanor, involving no moral turpitude; secondly, to an abuse of judicial process, by procuring a man to be indicted as for a crime, when it is a mere trespass; third, malicious search warrants.” Under the provisions of our code, the institution of a prosecution for a misdemeanor, or the suing of a search warrant, if done maliciously, may amount to a criminal prosecution, and may afford a sufficient basis for the institution of suit as for a malicious prosecution, because our code in terms provides that a total want of probable-cause is a circumstance from which malice may be implied, and in each of these instances a warrant for the apprehension of the person accused may lawfully issue, but not so with a mere non-indictable trespass. In such a case a warrant could no more lawfully issue than if one were accused of the non-payment of a promissory note when it became-due. In either case, if an affidavit were made and a warrant, issued, it would be wholly without authority or color of law, and therefore could in no view amount to a prosecution. “It is a prosecution to swear an information in consequence of which a warrant is issued for the plaintiff’s arrest, if the-information contains a statement that the informer believes the plaintiff to have committed an offense, but not otherwise.” Stephens on Malicious Prosecution, p. 7.
The proceeding in the present case, having been instituted wholly without warrant or authority of law, cannot be the basis of an action as for a criminal prosecution maliciously instituted and carried on. If the action had been for false imprisonment in consequence of the illegal action of the defendants in the present case and the declaration framed to that end, it might have been upheld; but in the present case the court erred in not sustaining a general demurrer to the declaration, and its judgment is accordingly
Reversed.