These exceptions cannot be sustained.

I. The declarations of third persons were inadmissible to affect the rights of the defendant, until proof had been offered, sufficient to satisfy the mind of the court, that the relation of principal and agent subsisted between the defendant and the persons whose statements the plaintiff sought to put in evidence. The competency of evidence is to be decided by the court; and, when the question of its admissibility depends on the determination of a fact, it is the province of the judge to say whether the fact is sufficiently established to render the evidence admissible. 1 Greenl. Ev. § 49. Gorton v. Hadsell, 9 Cush. 508. In this case it does not appear that the plaintiff *511offered any proof of the agency of the persons whose testimony was rejected by the court.

2. The contract between the defendant and Boyer for the erection of a shop on the defendant’s land was relevant and material to the issue, and tended directly to rebut evidence offered by the plaintiff in support of his case. One of the main facts on which he relied was, that the lumber, though selected by Boyer, was actually delivered on the defendant’s land, and was used in the erection of a shop thereon. Standing by itself, this was sufficient to prove a sate and delivery to the defendant. But evidence that there was a previous written contract between the defendant and the person who selected the lumber, to erect the shop and furnish the materials therefor, tended to rebut the inference, which might have been drawn from the delivery and use of the lumber on the defendant’s premises. It was not res inter alios acta, but an independent fact bearing directly on the substance of the issue. It is analogous to the case of articles furnished to repair a house. Evidence that they were delivered, and used on the premises would prima facie render the owner liable therefor. But there can be no doubt that it would be competent to prove, in answer to such a case, that the estate was previously teased to a tenant, who selected the lumber, and who was bound to make all repairs during the continuance of the term.

3. The objection, founded on the refusal of the court to admit further evidence in regard to the entry on the plaintiff’s books, is not open on these exceptions; because it was wholly within the discretion of the court, in the stage which the case had then reached, to receive or reject the evidence.

Exceptions overruled.