#### THE ATTORNEY GENERAL *against*JEREMIAH N. ALLEN.

After a cause is in this Court and the party is ready to have it heard, a motion to dismiss, for want of a prosecution bond, will not be entertained.

The 8th section of the 99th chapter of the Revised Code, which directs the tax on legacies to strangers in blood, imposed by the preceding section, to be retained by the executor or administrator “ upon his settlement of the estate,” and directs the tax to be paid into the clerk’s office, has reference to his settlement with the individual to whom the legacy is bequeathed, and not to the final settlement of the estate, and the tax must be paid into the office on the settlement with the legatee.

Cause removed from the Court of Equity of Craven county.

This was a bill of information filed by William A. Jenkins, Attorney General, against the defendant, Allen, who is the administrator *cum testamento annexo*of Isham Jackson, deceased. It alleges that, by his will, Isham Jackson bequeathed a considerable pecuniary legacy to a natural son, one Daniel Jackson; that by thg Revenue law of North Carolina, a tax of three *per cent,*upon this legacy is due the State, which sum, the defendant has failed to pay over upon demand.

The answer admits the material facts averred in the bill, and states the amount of the legacy in question, to be $632.84, upon whieh the tax amounted to $18.98. This sum defendant paid into the clerk’s office on the 20th of October, 1860, more than six months after the bill was filed. The defendant alleges that, by the terms of the statute upon Revenue, he was not bound to retain and pay over the tax until the final settlement of the estate, which final settlement had been delayed by the pendency of a suit against him, as administrator.

The 8th section of the 99th chapter of the Revised Code, upon the construction of which, the case is made to turn, is in the following words, viz :

“ The executor or administrator of every such deceased person, on his settlement of the estate, shall retain out of the legacy, or distributive share, of every such legatee or next of kin, the tax properly chargable thereon ; and in case he may have sold any real estate, and there shall be any surplus in *145bis hands, not needed to pay debts and charges, he shall retain the proper tax of each person entitled to such surplus; which taxes, he shall pay to the clerk of the court of pleas and quarters sessions of the county wherein the will was proved, or administration granted.”

The cause being set for hearing upon bill and answer, was sent to this Court by consent.

*Henry 0.*Jones, for the plaintiff.

*J.*i7. *Washington,*for the defendant.

Pearson, C. J.

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, chap. 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 distribu-tee 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 ? *Oui iono,*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 the 20th of October, 1860, but the bill was filed March I860; So, the defendant is again “behind time;” for taking the-matter as. *146ground against a further prosecution of the suit, in order to be a bar, it should have been accompanied by thq payment of all cost up to that date. The plaintiff will have a decree for the amount of the tax (to be satisfied by the money 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 á 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 CuijiaM, Decree accordingly.