This is an action for malicious prosecution, the complaint alleging that defendants, maliciously and without probable cause, procured plaintiff to be arrested and prosecuted upon a charge of arson before a justice of the peace; and, as a second count, charging that defendants in like manner, maliciously and without probable cause, procured and induced the district attorney of Contra Costa county to bring the same charge before the grand jury of said county with a view and purpose of having plaintiff indicted for said offense.

Plaintiff had a verdict, and from the judgment entered thereon and an order denying their motion for a new trial defendants appeal.

A number of errors are assigned as grounds for reversal.

1. It is urged that the evidence is wholly insufficient to sustain the verdict in that: 1. It does not tend to show that the prosecution of the plaintiff, either before the committing magistrate or the grand jury, was by or at the instigation or procurement of defendants, or any of them; and 2. That it does not appear that the prosecution, by whomsoever instigated, was either malicious or without probable cause.

We will first consider the second ground upon which this contention rests, since the first can be more conveniently disposed of in connection with another point. It appears, without substantial conflict, in fact largely from the evidence adduced by plaintiff on his affirma *434 tive case, that the circumstances upon which the prosecution of plaintiff was based, both before the magistrate and the grand jury, were substantially these:

It further appeared that before the prosecution was commenced all the circumstances of the case were fully and fairly laid before the district attorney of the county; that the district attorney advised that it was a proper *436 case for a prosecution and himself drafted a complaint against plaintiff charging him with arson, and directed the prosecuting witness to go before the justice and swear to the complaint and have plaintiff arrested. That, in pursuance of such advice, the complaint was sworn to and the prosecution of plaintiff had. It also appeared that, after the discharge of the plaintiff by the magistrate, the district attorney, of his own motion, took the matter before the grand jury for their investigation.

No principle is better established than that in actions for malicious prosecution the plaintiff must, in order to recover, establish not only malice, but want of probable cause. These two elements are essential, and they must concur or the action will not lie. (Potter v. Seale, 8 Cal. 220 ; Anderson v. Coleman, 53 Cal. 188 .) “ The primary question to be considered in this class of cases, as was said in Grant v. Moore, 29 Cal. 644 , is the want of probable cause for the prosecution complained of, and this must be established before plaintiff can recover; and the burden of proof is upon the plaintiff.” (Jones v. Jones, 71 Cal. 91 .) Reasonable or probable cause has been defined to be: “A suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.” (Potter v. Seale, supra, and cases there cited.) In view of these principles, and applying them to the foregoing facts, we are at a loss to understand upon what theory the learned judge of the court below denied defendants' motion for a nonsuit. We cannot readily conceive of a state of facts better calculated to arouse in the mind of any reasonable man a strong suspicion of guilt than was furnished in this case. It cannot be doubted that if, upon these acts, the plaintiff had been tried and convicted of arson in the burning of the buildings destroyed, it would be impossible to say that there was not evidence to sustain such conviction. They not only disclose a case of probable cause, but, in our judgment, they wholly negative the idea of malice. (See Jones v. Jones, supra.) Upon such *437 a state of facts the plaintiff should not have been permitted to go to the jury. “ Probable cause is a mixed question of law and fact. Whether the alleged circumstances existed or not is simply a question of fact; and, conceding their existence, whether or not they constituted probable cause is a question of law. Where the circumstances are admitted, or clearly proved by uncontradicted testimony, it is the province of the court to determine the question of probable cause, and the court may order a nonsuit.” (Potter v. Seale, supra.)

2. The court admitted over defendants’ objection evidence as to the declarations of one McCarthy, a detective, to the effect that he was in the employment of defendants for the purpose of working up the case against plaintiff and having him prosecuted for burning the houses. This was clearly erroneous. No other evidence was offered by plaintiff, aside from these declarations, to establish McCarthy’s employment by, or agency for, defendants in the premises, and the very purpose of introducing such declarations would seem to have been to prove such agency. The declarations were inadmissible for such purpose. It was incumbent upon the plaintiff to first establish the fact of agency before the declarations of the agent became admissible to bind his principal. (Grigsby v. Clear Lake Co., 40 Cal. 396 ; Savings & Loan Soc. v. Grichten, 64 Cal. 521 .)

The defendants denied any responsibility for, or connection with, the prosecution of plaintiff, or that McCarthy was their agent or employee for any such purpose; and, inasmuch as the evidence of such declarations was the only evidence tending directly to connect defendants with the prosecution, its admission was prejudicial error.

3. The action of the court in giving certain instructions and refusing others requested is complained of. The questions involved in the instructions given and refused are covered by what has been said above on other features of the case, and wherein the court erred *438 in these particulars is, we think, made sufficiently manifest without further or special consideration.

4. The objection that the damages are excessive need not be considered at this time, as the question may not arise upon another trial.

The judgment and order are reversed, and the cause remanded.

Garoutte, J., and Harrison, J., concurred.