have such priority in the administration of the assets of the principal as had the debt before its payment.

Code, s. 2096; R. C., c. 110, s. 4; 1829, c. 23.

2844. Co-surety liable for contribution. Where there are two or more sureties for the performance of a contract, and one or more of them may have been compelled to perform and satisfy the same, or any part thereof, and the principal shall be insolvent, or out of the state, such surety may have and maintain an action against every other surety, for a just and ratable proportion of the sum which may have been paid as aforesaid, whether of principal, interest or

cost.

Code, s. 2094; R. C., c. 110, s. 2; 1807, c. 722.

2845. May dissent from stay of execution; not then liable to surety on stay. Whenever any judgment shall be obtained before a justice, against a principal and his surety, and the principal debtor shall desire to stay the execution thereon, but the surety is unwilling that such stay shall be had, the surety may cause his dissent thereto to be entered by the justice, which shall absolve him from all liability to the surety who may stay the same. And the constable or other officer, who may have the collection of the debt, shall make the money out of the property of the principal debtor, and that of the surety for the stay of execution, if he can, before he shall sell the property of the surety before judgment.

Code, s. 2095; R. C., c. 110, s. 3; 1829, c. 6, ss. 1, 2.

2846. May notify creditor to collect; penalty for delay. In all cases where any surety or indorser on any note, bill, bond, or other written obligation, shall consider himself in danger of loss in consequence of his contingent liability, either from the insolvency or misconduct of the principal, in said note, bill, bond, or other written obligation, or from the negligence of the payee or holder of any such instrument, it shall be lawful for such surety or indorser, at any time after such note, bill, bond, or other written obligation shall have become due and payable, to cause written notice to be given to the payee or holder of any such paper or obligation, requiring him to bring suit on said obligation, and to use all reasonable diligence to save harmless such surety or indorser: Provided, nothing herein contained shall apply to official bonds, or bonds given by any person acting in a fiduciary capacity.

Code, s. 2097; 1868-9, c. 232, s. 1.

2847. Negligence of creditor discharges surety, when; proviso. Should the payee or holder of any such note, bond, bill, or other written obligation, refuse or fail, within thirty days from the serv

ice of said notice, to bring suit in the appropriate court in an effort to save harmless such surety or indorser, such refusal or failure to sue shall operate as a discharge of such surety or indorser, from all liability whatever, on any such note, bond, bill, or other written obligation: Provided, that this notice shall not have the effect to discharge from liability any co-surety who does not join in such notice, or who has not given a separate notice: Provided further, that this and the preceding section shall not apply to holders of such note, bond, bill, or obligation, who hold the same as collateral security or in trust.

Code, s. 2098; 1868-9, c. 232, s. 2.

2848. How notice served. Such notice shall be served by the sheriff or his deputy, who shall return it to the party for whose benefit the notice was issued, which shall be evidence of the fact in all courts.

Code, s. 2099; 1868-9, c. 232, s. 3.

NOTE. For remedy of surety on executor's bond, see Administration.
For evidence against principal as against surety, see s. 285.

2849. Chapter to remain in force unless expressly repealed or amended by, or clearly in conflict with, later acts. The provisions of this chapter shall continue in force whether or not brought forward in subsequent acts to raise revenue or acts to provide for the assessment and collection of taxes, commonly called "revenue acts"

and "machinery acts," unless and until expressly repealed or amended by, or clearly inconsistent with, subsequent legislation; it being the intention of the general assembly that this chapter shall be a standing provision for the government of the matters embraced therein, and not to be repealed by implication because omitted in whole or in part from subsequent legislation on the subject of taxation.

2850. Application and construction of this chapter. The provisions of this chapter shall apply to all taxes as defined in this chapter, whether state, county, town, city, or other municipal subdivision; and shall be liberally construed in favor of, and in furtherance of, the collection of such taxes.

2851. Definitions. Unless such construction or definition would be manifestly inconsistent with or repugnant to the context, the words and phrases following, whenever used in this chapter, shall be construed to include in their meaning the definitions set opposite the same in this section:

1. "Tax," "taxes." Any taxes, special assessments or costs, interest or penalty imposed upon property or polls.

2. "He." Male, female, company, corporation, firm, society, singular or plural number.

3. "Real property." Real estate, land, tract, lot-not only the land itself, whether laid out in town or city lots or otherwise with all things therein, but also all buildings, structures and improvements and other permanent fixtures of whatever kind thereon, and all rights and privileges belonging or in anywise appertaining thereto, and all estates therein.

4. "Sheriff." Every person who is by law authorized to collect taxes, either state or municipal.

1903, c. 251, s. 86.

2852. When taxes are due. Unless otherwise expressly provided by law, all taxes shall be due on the first Monday in September of each year and collection thereof may be enforced on and after that day.

1903, c. 251, s. 79.

2853. Payable in national currency. Taxes are payable in the existing national currency, and shall be collected as prescribed by this chapter, except where otherwise provided by law.

Code, s. 3674; 1872-3, c. 144, s. 1; 1903, c. 247, s. 1.

2854. No taxes to be released; penalty. No board of county commissioners, or council, or board of aldermen or commissioners of

any city or town shall have power to release, discharge, remit or commute any portion of the taxes assessed and levied against any person or property within their respective jurisdictions for any reason whatever; and any tax so discharged, released, remitted or commuted, may be recovered by civil action from the members of any such board at the suit of any citizen of the county, city or town, as the case may be, and when collected shall be paid to the proper treasurer. Nothing in this section shall be construed to prevent the proper authorities from refunding taxes as provided in this chapter; nor to interfere with the powers of any officers or boards sitting as a board of equalization of taxes; nor construed to exempt any taxpayer or property from liability for taxes released, discharged, remitted or commuted in violation of this section.

1901, c. 558, s. 31.

2855. Injunction and replevin not allowed; remedy of taxpayer. Unless a tax or assessment, or some part thereof, be illegal or invalid, or be levied or assessed for an illegal or unauthorized purpose, no injunction shall be granted by any court or judge to restrain the collection thereof in whole or in part, nor to restrain the sale of any property for the nonpayment thereof; nor shall any court issue any order in claim and delivery proceedings or otherwise for the taking of any personalty levied on by the sheriff to enforce payment of such tax or assessment against the owner thereof. Whenever any person shall claim to have a valid defense to the enforcement of a tax or assessment charged or assessed upon his property or poll, such person shall pay such tax or assessment to the sheriff; but if, at the time of such payment, he shall notify the sheriff in writing that he pays the same under protest, such payment shall be without prejudice to any defenses or rights he may have in the premises, and he may, at any time within thirty days after such payment, demand the same in writing from the treasurer of the state or of the county, city or town, for the benefit or under the authority or by request of which the same was levied; and if the same shall not be refunded within ninety days thereafter, may sue such county, city or town for the amount so demanded, including in his action against the county both state and county tax; and if upon the trial it shall be determined that such tax or any part thereof was levied or assessed for an illegal or unauthorized purpose, or was for any reason invalid or excessive, judgment shall be rendered. therefor, with interest, and the same shall be collected as in other cases. The amount of state taxes for which judgment shall be rendered in such action shall be refunded by the state treasurer. 1901, c. 558, s. 30.

Note. See also s. 821.

2856. How tax list endorsed; equivalent to judgment and execution. Every tax list before being placed in the hands of the sheriff shall be endorsed by the authorities levying the taxes, with an order for their collection. The order shall be in the following or similar form:

State of North Carolina,

County.

Office of Board of Commissioners of

County (or town). To the Sheriff (or Constable) of ........ County (or town)-Greeting: By order of the board, you are hereby commanded to collect the taxes herein mentioned, according to the provisions and requirements of the existing law. In witness whereof, I have hereunto set my hand and official seal, this the day of [L. S.]

19.

Clerk Board of Commissioners of

... County.

The tax list, when thus endorsed, shall have the force and effect of a duly docketed judgment and of an execution against the real and personal property of the persons charged with taxes on such list.

Code, s. 3681; 1903, c. 251, s. 74; 1872-3, c. 115, s. 21; 1876-7, c. 155, s. 22.

2857. Taxes to be paid in cases of judicial sales and sales under powers. In all civil actions and special proceedings wherein the sale of any real estate shall be ordered, the judgment shall provide for the payment of all taxes then assessed upon the property and remaining unpaid, and for the payment of such sums as may be required to redeem the property, if it has been sold for taxes and such redemption can be had; all of which payments shall be adjudged to be made out of the proceeds of sale. The judgment shall adjust the disbursements for such taxes and expenses of redemption from tax sales between the parties to the action or proceeding in accordance with their respective rights. And whenever any real estate shall be sold by any person under any power of sale conferred upon him by any deed, will, power of attorney, mortgage, deed of trust, or assignment for the benefit of creditors, the person making such sale must pay out of the proceeds of sale all taxes then assessed upon such real estate and such sums as shall be necessary to redeem the land, if it has been sold for taxes and such redemption is practicable.

1901, c. 558, s. 47.

2858. Lienor may pay taxes and retain lien of. Any person having a lien or incumbrance of any kind upon real estate may pay the taxes due by the owner thereof in so far as the same are a lien upon such real estate, and the amount of taxes so paid shall, from the time of payment, operate as a lien upon such real estate in preference to all other liens, which lien may be enforced by action in the superior court in term. The money so paid may also be recovered