Merrimon, J.,
(after stating the case.) These appeals are separate and distinct from each other, but it is convenient to consider them together, and our opinion will suffice to dispose of both of them.
It was the province and duty of the Board of County Canvassers to receive the returns of the election in question and ascertain from them who received the votes cast thereat for Clerk of the Superior Court, who received the highest number of votes and to declare the result of the election. In doing this they had authority to examine and scrutinize the *64returns, to determine whether they were such, whether they were sufficient or otherwise, andfromsuch as were accepted by them as proper ones to ascertain the result as above indicated. But their action as to the sufficiency or insufficiency of the returns in determining the result was not final or conclusive. It simply settled prima facie the right of the defendant to be inducted into and to exercise the office of Clerk and to receive the emoluments thereof. This was the whole extent of their authority. The right of the relator or any other person claiming to have been elected Clerk was left open to be litigated without prejudice, in a proper action brought to ascertain and determine the true result of the election without reference to the action of the Board of County Canvassers further than that they settled prima facie the right of the defendant. No appeal lay from their decision to the Superior or other court,. nor could their action be reviewed and their errors corrected, as such, by an appellate tribunal. In the action brought at the instance of a party the Court would not be restrained or controlled by the action of the Board of County Canvassers in deciding that a return was sufficient and valid or otherwise ; it would decide any such question as if no decision had been made by that Board. This was decided in Gatling v. Boone, 98 N. C., 573, and Roberts v. Calvert, Id, 580. Hence . any inquiry in this action as to whether the Board of County Canvassers properly or improperly rejected the returns from St. John’s township was wholly immaterial and could serve no just purpose.
The single material issue raised by the pleadings in this action was, did the relator receive a majority of the votes cast at the election mentioned for Clerk of the Superior Court? The first issue submitted to the jury, though not precise, embodied and involved that inquiry. The returns of the election if sufficient as such, were evidence, though not necessarily conclusive, to prove or disprove the affirmative of that issue. If for any cause they or any of them *65were not sufficient and therefore not evidence, then any competent evidence might have been received tending to prove what the vote cast really was at any particular voting place in question, and this was so wiihout reference to what the Board of County Canvassers may have decided in respect'to any return. The true inquiry on the trial was not what the board mentioned decided, but what was the true result of the election .as to the relator. This was the leading, and one of the chief purposes of the action.
The second and third issues submitted to the jury were wholly immaterial and improperly submitted. They involved no pertinent or material inquiry. If the relator received a majority of the votes cast he was elected and entitled to be inducted into office, whether the board mentioned rejected the returns of the election of the township mentioned or not. In no proper sense did their decision as fc> these returns determine or affect the number of votes cast in those townships, or in any way affect the result to be ascertained and determined by this action. Their decision.did not determine, nor was it evidence of the number of votes really cast. As we have seen, it was not their province to ascertain the result of the election otherwise than by the returns received by them. They could not go behind the returns, and make inquiry as to the actual number of votes cast and thus determine the result of the election.'
We are therefore of opinion that the Court ought to have disregarded the second and third issues and the verdict of the jury upon them, and that it ought to have given judgment for the relator upon the verdict responsive to the first issue.
It follows that the defendant was not entitled to have the judgment which he asks the Court to give in his favor.
It was contended on the argument for the defendant, that inasmuch as the parties agreed upon the issues submitted to *66the jury, the second and third ones should be treated as material in some possible'aspect of them, and that the judgment appealed from should be affirmed. But, as we have seen above, these issues were not pertinent in any sense, and were wholly immaterial. If they had served any pertinent purpose, and in their nature could have effected the issues properly raised by the pleadings and submitted to the jury, then it might be otherwise, as was the case in Porter v. The Railroad Co., 97 N. C., 66. There some of the issues agreed upon were immaterial, but they were such as bore upon and affected the issues raised by the pleading, and probably misled the jury, and thus brought about a verdict of contradictory findings of fact. That was not so in this case. Here the immaterial issues did not bear upon the material one, nor was the verdict inconsistent and contradictory, nor, moreover, did the immaterial one probably mislead the jury as to the first issue; it does not so appear in the controversy; it seems they did not regard the action of the Board of County Canvassers in rejecting the returns as having any bearing .upon, or as having anything to do with the votes actually cast at the election. 'They found that the relator received a majority of the votes .cast, and this they could not. have done, as appears from the facts stated in the case settled on appeal, if they had disregarded the votes cast at the voting places, the returns from which were rejected by the Board.
It does not appear that the submission of the immaterial issues prejudiced the defendant, and as it does not, that they were submitted, is not ground for a new trial — certainly, when the party complaining agreed to submit them. Porter v. Railroad Co., supra; Cumming v. Barber, 99 N. C., 332; Rigsbee v. Durham, 99 N. C., 341.
There Is error. Let this opinion be certified to the Superior Court, to the end that judgment may be entered there •jin faypr; of the relator according to law. It is so ordered.
Error.