(after stating the facts). The ruling disposes •of the exception first taken to the refusal of the Court to permit proofs of the declarations of the deceased, “that he was holding and leasing the land by the authority of and as agent of the defendants,” and equally incompetent "was the case made out in the appeal in the case of Doe on the demise of Adelaide and Elizabeth Kron (the present defendants) v. Benjamin Cagle, reported in 1 Winston, 118.
The ruling of the Court upon the insufficiency of the evidence to show a prima facie agency, so as to let in proof of the acts and declarations of the alleged agent to the jury, a preliminary enquiry to be determined by the Judge, Monroe v. Stutts, 9 Ired., 49, and numerous other cases referred to under it in Tourgee’s Digest of Cited Cases, is upon a question of fad, not of law, and is beyond the reviewing power of the appellate Court. Facts upon which the admissibility of •evidence offered depends, must be ascertained and found by the Court, and the conclusions of the Judge, if there be evidence, stand upon the same footing as the finding of the jury upon issues of fact.
Thus the Court must determine whether confessions have proceeded from undue influence operating on the mind of the accused so as to induce him to make them, and the determination is conclusive, while what amounts to such influence is a matter of law; State v. Andrew, Phil., 205. The former is not reviewable; State v. Davis, 63 N. C., 578 ; State v. Vann, 82 N. C., 631; State v. Sanders, 84 N. C., 728; State v. Efler, 85 N. C., 585; State v. Burgwyn, 87 N. C., 572.
*397So is tiie sufficiency of the proof of a lost writing to let in secondary evidence of its contents; Ellison v. Rix, 85 N. C., 77,
The Court must decide, as in case of agency, if the proofs of a conspiracy are prima facie, so as to admit the declarations of one in pursuit of the common object against the others; State v. Jackson, 82 N. C., 565.
Upon the qualifications of an expert to give an opinion; State v. Secrest, 80 N. C., 450.
Upon the mental capacity of a child of tender years to' give testimony; State v. Edwards, 79 N. C., 648.
Upon the presence of negro blood in the defendant under the former law, so as to render a witness possessing the same blood competent to testify in the case; State v. Norton, 1 Wins., 296.
These cases serve as illustrations of the proposition, that the finding of a preliminary fact, necessary to the admission of testimony, made by the Judge, is conclusive upon this Court.
The next exception, not necessary to be decided in disposing of the appeal, in view of the absence of any evidence to sustain it, is to the ruling that infants, not being able to make binding contracts, except for necessaries in a proper case, are incapable of forming such a relation with an agent as to render them liable for his torts, clone in prosecuting the objects of the alleged agency. This is what we understand the ruling to be, and we give it our unqualified assent.. Unquestionably an infant is responsible for his own torts civilly, and, when they constitute a crime or misdemeanor, criminally also; and this, when committed by direction of one having authority over him, so far at least as affects his responsibility in an action -for damages. Cooley on Torts, 103 and followin; 1 Ch. Pl., 76, 80; Robbins v. Mount, 4 robt. (N. Y.), 553.
*398If the instruction goes beyond the liability growing out of and inseparable from the relation of principal and agent, formed by contract positive or implied, and protects the infant of sufficient intelligence and judgment from accountability for torts, involved and done in the necessary prosecution of the business of the agency and the attainment of its ends, we are not prepared to concur in its correctness in law. We do not see why the rule in such case,qui facitper alium, facit per se, does not apply. But, however this may be, the instruction was irrelevant and not hurtful to the appellants, for there was no evidence presenting a state of facts to which it was applicable. There is no error.
No error. Affirmed.