may be levied, to the amount of the tax for such fund, without regard to priority of the numbers of such orders, except when otherwise provided by law, and he shall write or stamp across the face of all such orders the date of their receipt, and the name of the person from whom received. (882)

Although the treasurer is required to receive certain orders in payment for taxes he is still chargeable on account thereof as with the receipt of money (29-78, 11+233). Orders on county funds are within the statute (83-512, 86+775).

ACCOUNTING AND DISTRIBUTION OF FUNDS.

102. Settlement between treasurer and auditor-On the last day of February, May, and October of each year, the county treasurer shall make full settlement with the county auditor of his receipts and collections for all purposes, from the date of the last settlement up to and including each day mentioned, and the auditor shall within twenty days after each settlement send an abstract of the same to the state auditor, in such form as the state auditor may prescribe. At each settlement the treasurer shall make complete returns of his collections on the current tax list, showing the amount collected on account of the several funds included in said list. (883)

103. Apportionment and distribution of funds-On the last day of February, May, and October in each year, the county auditor and county treasurer shall make distribution of all undistributed funds remaining in the treasury, apportioning the same as provided by law, and placing the same to the credit of the state, town, city, village, or school district, and each county fund. Within twenty days after such distribution is completed the county auditor shall make report thereof to the state auditor, in such form as the state auditor may prescribe. The county auditor shall issue his warrant for the payment of any moneys remaining in the county treasury to the credit of the state, town, city, village, or school district on application of the persons entitled to receive the same. (884)

104. When treasurer shall pay funds-Immediately after each settlement in February, May, and October, the county. treasurer shall pay over to the treasurer of state, or of any town, city, village, or school district, on the warrant of the county auditor, all moneys received by him arising from taxes levied and collected belonging to the state, or to such municipal corporation, or other body, and deliver up all orders and other evidences of indebtedness of such corporation or other

body, taking triplicate receipts therefor. He shall file one of said receipts with the county auditor, and shall return one by mail on the day of its reception to the clerk of the town, city, village, or school district to which such payment was made, who shall preserve the same in his office. (885)

79-201, 81+912; 28-197, 9+681; 83-512, 86+775; 88-346, 93+126.

105. Auditor to keep accounts-The county auditor shall keep accounts with the state, the county, and each of the funds. of such county, and each town, city, village, and school district, and with the county treasurer, making daily entries of the charges and credits to the treasurer; and, immediately after each distribution of taxes, he shall credit the collections to the proper funds. He shall give a warrant on the county treasurer for the amount due any town, city, village, or school district, upon application of its treasurer, and upon the filing of a certificate of its clerk that the person applying is such treasurer, duly elected or appointed, and has given bond according to law; and he shall charge such body with the amount of the warrant. (886)

79-201, 81912.

106. Distribution of interest penalties and costs-All penalties and interest accruing upon any tax levied by special assessment or otherwise, for local purposes, on real estate in any incorporated city, borough or village shall be apportioned to the general revenue fund of the city, borough or village where the real estate is situated, and all other penalties, costs and interest collected on real estate taxes shall be apportioned one-half to the county revenue fund and the other half to school districts of the county in the manner provided for the distribution of other school funds by section 3763 of the General Statutes of 1894 as amended by chapter 49 of the General Laws of 1897. (1905 c. 239)

DELINQUENT PERSONAL PROPERTY TAXES

107. When delinquent - Penalty-All unpaid personal property taxes shall be deemed delinquent on March 1 next after they become due, and thereupon a penalty of ten per cent. shall attach and be charged upon all such taxes. (888)

Taxes become due on the first Monday in January next after the assessment (63-61, 65+119).

108. Treasurer to file delinquent list in court-AnswerTrial-On the fifth secular day of April of each year the county treasurer shall make a list of all personal property taxes remaining delinquent April 1, and shall immediately certify to and file the same with the clerk of the district court of his county, and upon such filing the list shall be prima facie evidence that all the provisions of law in relation to the assessment and levy of such taxes have been complied with. On or before the tenth secular day next thereafter, any person whose name is embraced in such list may file with the clerk an answer, verified as pleadings in civil actions, setting forth his defence or objection to the tax or penalty against him. The answer need not be in any particular form, but shall clearly refer to the tax or penalty intended, and set forth in concise language the facts constituting his defence or objection to such tax or penalty. The issues raised by such answer shall stand for trial at any term of court in such county in session when the time to file answers shall expire, or at the next general or special term appointed to be held in such county; and, if no such term be appointed to be held within thirty days thereafter, then the same shall be brought to trial at any general term appointed to be held within the judicial district, upon ten days' notice. The county attorney of the county within which such taxes are levied, or, if there be none, of the county within which such proceedings are instituted, shall prosecute the same. At the term at which such proceedings come on for trial, they shall take precedence of all other business before the court. The court shall without delay and summarily hear and determine the objections or defences made by the answers, and at the same term direct judgment accordingly, and in the trial shall disregard all technicalities and matters of form not affecting the substantial merits. If the taxes and penalties shall be sustained, the judgment shall include costs. (889)

1. Proceedings in personam-Personal property taxes are assessed against the person and not against the property. It is true the person is taxed on account of the property and the value of the property determines the amount of the tax, but the liability is purely personal. If the tax is assessed against A it cannot be collected from B although the latter is the party against whom it ought to have been assessed (69-131, 72+60; 47-552, 50-615; 72-409, 75+723; 90-120, 95+1115). Consequently the proceedings for the collection of delinquent personal property taxes are in personam. The distress warrant issues against all the personal property of the person assessed; not exclusively or specifically against the property on which the tax is based (See 61–219, 63+630).

2. Filing the delinquent list-The filing of the list is a ministerial act. Under 1897 c. 79 § 1 it was permissable to file it within a reasonable time after the first day of April (76-423, 79+543).

3. The answer-Up to the time of the filing of an answer the proceedings are ministerial and then they become judicial. The purpose of the amendment of 1897 c. 79 was to permit a party to prevent the issuance of a distraining warrant, for prior to that time a delinquent could not be heard in a judicial proceeding until he was cited to appear after a warrant had been returned by the sheriff as uncollectible (76-123, 79+543). The form of the answer is the same as an answer in proceedings for the collection of delinquent real estate taxes (See § 915). The defences which may be interposed by answer are apparently the same as those which may be interposed on the hearing of a citation (See § 896).

4. The trial The provision as to the time of hearing is directory (92283, 100+6). The burden of proof is on the taxpayer to show the invalidity of the tax. (See § 893.)

109. Distress and sale-Upon the fifteenth secular day of April next after the filing of such list the said clerk shall issue his warrants to the sheriff of the county as to all the taxes and penalties embraced in the list, except those to which answer has been filed, directing him to proceed to collect the same. If such taxes are not paid upon demand, the sheriff shall distrain sufficient goods and chattels belonging to the person charged with such taxes, if found within the county, to pay the same, with the said penalty of ten per cent. and all accruing costs, together with twenty-five cents from each delinquent, as compensation to said clerk. Immediately after making distress, the sheriff shall give at least ten days' posted notice in the town or district where the property is taken, stating that the property, or so much thereof as will be sufficient to pay the taxes for which it is distrained, with penalty and costs of distress and sale, will be sold at public vendue at a place and time therein designated, which time shall not be less than ten days after such taking. If such taxes and penalties and accrued costs are not paid before the day designated, the sheriff or his deputy shall proceed to sell the property pursuant to the notice. (890).

The provision authorizing a distress warrant is constitutional. The warrant is the warrant of the clerk and not of the court and need not be under seal. Formal defects are immaterial. If regular on its face the warrant protects the officer executing it in a reasonable manner (61-219, 63+630. See 40-512, 41+465, 42+473; 72-519, 75+718). It will be presumed that the officer made demand before seizure (61-219, 63+630. See 11-321, 225). Under G. S. 1866 c. 11 § 75 the treasurer had authority to collect taxes by distress on the delinquent list as well as on the duplicate (14-548, 418).

110. Payment under protest-Sections 888-890 shall not deprive any taxpayer of the right to pay under protest any tax claimed to be unjust or illegal, and to bring an action for the recovery of the same in any case where such remedy is now allowed by law. (891)

86-301, 90+772.

111. Sheriff to file list of uncollected taxes-Uncollectable taxes-If the sheriff is unable, for want of goods and chattels whereon to levy, to collect by a distress or otherwise the taxes, or any part thereof, assessed upon the personal property of any persons, he shall file with the clerk of the court on June 1 following a list of such taxes, with an affidavit of himself, or of the deputy sheriff intrusted with the collection thereof, stating that he has made diligent search and inquiry for goods and chattels from which to collect such taxes, and is unable to collect the same. He shall note on the margin of such list the place to which any delinquent taxpayer may have removed, with the date of his removal, if he is able to ascertain the fact. At the time of filing said list he shall also return all the warrants with indorsements thereon showing his doings in the premises, and the clerk shall file and preserve the same. On or before June 10 thereafter, the clerk shall deliver such list and affidavit to the county treasurer, who shall, by comparison of such list with the tax duplicates in his office, ascertain whether or not all personal property taxes reported by him to the clerk as delinquent, except those included in such list, have been paid into the treasurer's office, and shall attach to such list his certificate, stating whether or not all taxes reported by him to the clerk as delinquent and not included in such list have been received by him, and stating the items of such taxes, if any, as have been received. The treasurer shall deliver such list and affidavit, with his certificate attached, to the county board, at their first session thereafter, which shall cancel such taxes as they are satisfied cannot be collected. A copy of the tax list so revised, and also a separate list of the taxes. so canceled, shall be included in the records of the proceedings of such board, and published in full, as a part of such proceedings. (892)

The county board has no authority to cancel taxes except in strict pursuance of this section (57-212, 58+864; 66-304, 69+25. See Ops. Atty. Genl. 1898, No. 141). The provision requiring the sheriff to file a list of uncollected taxes on June 1 is directory as to time (44-383, 46+678). In publishing the revised list the names of deceased persons cannot be omitted (Ops. Atty. Genl. 1898, No. 25).

112. Citation to delinquents-Service-Default judgmentWithin ten days after the adjournment of the county board, the auditor shall file a copy of such revised list with the clerk of the district court, and within ten days thereafter the clerk shall issue a citation to each delinquent named in the list, stating the amount of tax and penalty, and requiring such delinquent to appear on the first day of the next general term