1. The motion to dismiss for want of a prosecution bond, made in this Court, is not allowed. Such matters should be attended to in the preliminary stage of a suit. After a case is in this Court and the party is ready to have it heard, a motion to dismiss for want of a prosecution bond is "behind time."
2. The objection, which is faintly made by the answer, that an illegitimate son is not "a stranger in blood," was properly abandoned on the argument.
3. The point made on the construction of the statute, Rev. Code, ch. 99, sec. 8, is against the defendant. "On his settlement of the estate," taken in connection with the words, "shall retain out of the legacy or distributive share of every such legatee or next of kin," does not refer to a final settlement of the estate, but to his settlement, so far as the legatee or distributee is concerned, out of whose legacy or share the tax is to be retained. When an administrator, as in this instance, pays over a legacy and retains out of it the amount of the tax, for what purpose should he keep it in hand until there can be a "final settlement" of the estate?Cui bono, except to tempt him to apply the amount (which would otherwise be idle in his pocket) to his own use?
4. It appears by the exhibit filed that the defendant paid the amount of the tax to the County Court Clerk on 20 October, 1860, but the bill was filed March, 1860. So, the defendant is again "behind time"; for taking the matter as ground against a further prosecution of the suit, in order to be a bar, it should have been accompanied (146) by the payment of all costs up to that date. The plaintiff will have a decree for the amount of the tax (to be satisfied by the money *Page 120 in the Clerk's office) and for his costs, which really seems to be the point in the case.
We will take occasion to say that the payment of taxes is a duty which every good citizen ought to attend to. If he is remiss in regard to it, he has no right to object to a "bill of cost." The State is not, and ought not to be, required to be at the expense of having an agent to make a demand in each and every case. Every good citizen should be prompt to pay his taxes.
PER CURIAM. Decree accordingly.