after stating tbe ease: Tbe controversy between tbe parties is snob tbat a full statement of tbe facts is necessary, and'wben tbis is considered, in connection witb tbe assignments of error, it demonstrates tbat tbe issue in dispute is one of fact, and not of law, and tbat tbis bas been decided against tbe relator by tbe tribunal selected by tbe plaintiff and tbe defendant.
Tbe board of canvassers were acting under a statute (Revisal, sec. 4356) wbicb made it tbeir duty “to judicially determine tbe result of tbe election,” and having found as a fact tbat tbe relator received 433 votes in Broadbay, and tbat tbe defendant was duly elected, tbe referee properly beld tbat tbis made out a prima facie case for tbe defendant. Bynum v. Commissioners, 101 N. C., 412; Gatling v. Boone, 98 N. C., 573; Wallace v. Salisbury, 147 N. C., 58.
In any event, however, tbe burden of proof was on tbe relator, because be commenced tbe action to recover tbe office of sheriff, and be alleges tbat tbe defendant is in possession of tbe office and tbat be, tbe relator, received a majority of tbe votes cast, and having made these allegations, tbe burden was on him to prove them.
Tbe statute (Revisal, sec. 4348) seems to contemplate but one original return, and it was as competent for tbe referee to determine wbicb was tbe original, when four exhibits were in evidence, each of wbicb might be claimed to be tbe original, as it was for him to determine any othey fact, and when identified by tbe finding of tbe referee, tbe original was prima facie correct.
In speaking of an election return, in Roberts v. Calvert, 98 N. C., 585, tbe Court says: “It was not conclusive, but it was official and strong evidence; it appearing to be regular, proved tbe pertinent facts stated in it prima facie. It put tbe burden on him who alleged tbe contrary, to prove it clearly.”
It was not essential to tbe integrity of tbe report for tbe referee to find tbe facts as to what occurred when tbe votes were counted on tbe night of tbe election, as these incidents were merely evidentiary on tbe principal issue of tbe number of votes cast for tbe relator and tbe defendant.
*98The referee was acting as a jury, with power to find the facts, and it was his duty to weigh the evidence, and to determine on which side it preponderated, and to pass on the credibility of witnesses.
In order to find the ultimate fact as to the number of votes cast it was necessary and proper for him to settle in his own mind whether the evidence in behalf of the relator preponderated; whether the evidence of certain witnesses was entitled to no weight; whether the evidence of other witnesses was entitled to but little weight; whether the evidence of one witness was entitled to less weight than that of another; and the fact that he told what he thought, cannot affect the report, nor is it material that he had grave doubts as to the competency of certain evidence which he admitted and considered.
The evidence as to what occurred when George Clodfelter phoned to Winston was properly excluded. George Clodfelter kept a tally-sheet, and after the votes were counted some one marked the votes for sheriff on a ticket, and he took the ticket to a store to phone the result to Winston. It was so dark in the store that he could not read the figures on the ticket, and he handed it to Luther Snyder, who called out some figures, and Clodfelter phoned to Winston.
Luther Snyder was not a witness and there was no evidence that he called out the figures as they appeared on the ticket, and George Clodfelter testified that he did not remember what the figures were on the ticket, nor the figures called out or phoned by him.
The relator offered to prove the figures called out by Snyder and phoned by Clodfelter, and this was excluded.
The case of Propst v. Mathis, 115 N. C., 526, seems to be directly in point. In that case the plaintiff relied on a will as a part of his title, of date 1853. He offered evidence of the destruction of the records in the clerk’s office of Burke County, in 1865, and then offered to prove that he went to the clerk’s office in 1853, and that the clerk read the will to him from the record, and its contents, and the court held this evidence inadmissible.
*99Tbe case of Hart v. R. R., 144 N. C., 91, relied on by tbe relator, is clearly distinguishable, because in that case tbe party on whose statements tbe paper in controversy was made up was examined as a witness, and testified that bis statements were correct, and tbe decision rests upon tbe principle that, “Where a witness testifies that be has truly stated to a third person, of bis own knowledge, a fact which be has since forgotten, tbe testimony of such third party as to what tbe statement was is competent.”
Tbe remaining assignments are to tbe finding as to tbe number of votes cast for tbe relator, which we cannot review, and to tbe conclusion that tbe defendant was duly elected, which follows as'a matter of course from tbe facts found.
No error.