Defendant’s appeal from a judgment in this action overruling his demurrer ore temis to the complaint, challenging the right of the relator to maintain this action, was heard at the Fall Term, 1929, of this Court. The judgment was affirmed, 197 N. C., 731, 150 S. E., 567. The action has since been tried on the issues raised by the pleadings, by a referee, and is now here on the appeal of the defendant from the judgment in accordance with the report of the referee, as modified by the judge. The judgment adverse to the defendant is supported by the finding of fact that at the election for the office of councilman of the city of High Point from Ward No. 2, held in said ward on 7 May, 1929, 586 votes were cast for T. C. Johnston, and only 574 votes were *26cast for tbe defendant, W. A. Davis, the majority for tbe said T. 0. Johnston being 12 votes.
It is conceded by tbe defendant in bis brief filed in tbis Court that tbe judgment from wbicb be lias appealed must be affirmed, unless, as he contends, there was error in excluding 13 absentee ballots cast at tbe election for him. If these ballots were properly excluded defendant, not having received a majority of tbe votes cast at the election, is not entitled to tbe office of councilman of tbe city of High Point from Ward No. 2. If these ballots should have been counted for him, he was elected by a majority of one, and rightfully qualified for and holds said office.
The validity of the 13 ballots, all of which were east by absentees, was challenged at the trial before the referee on the sole ground that although each of said ballots was accompanied by an affidavit, showing on its face that the subscriber had been sworn, in truth and in fact such subscriber was not sworn as required by the statute. C. S., 5960, et seq.
Evidence, consisting in each case of the testimony of the voter whose name was subscribed to the affidavit, was offered at the trial to the effect that the subscriber was not sworn by the officer whose name was signed to the jurat. Defendant contends that this evidence was incompetent, and should not have been admitted over his objection. The question of law involved in this contention is whether it is competent for a person who admits that he or she signed a paper-writing purporting to be and in form sufficient as an affidavit, to testify, after the affidavit has been accepted as establishing the facts to be as stated therein, that he or she was not sworn-.
The jurat of an officer authorized to administer oaths is prima facie evidence of all matters properly stated therein; but it is not conclusive, and extrinsic evidence is admissible to prove that such statements are in fact false. 2 C. J., 367. In Green v. Rhodes, 8 Ga. App., 301, 68 S. E., 1090, it was held that the officer who signed the jurat to an alleged affidavit is competent to testify that the affidavit was not sworn to; and so it must be held that the subscriber to an alleged affidavit is likewise competent to testify that he did not swear to the affidavit. His testimony is admissible to show that he was not sworn; the jurat on the affidavit is evidence, only, prima facie, to the contrary and therefore subject to contradiction.
There was no error in excluding the 13 ballots cast for the defendant by persons who did not attend the election, but who sought to avail themselves of the privilege of the statute authorizing voters in certain instances to vote as absentees. Davis v. Board of Education, 186 N. C., 227, 119 S. E., 372. The judgment is
Affirmed.