¶1delivered the opinion of the court.
¶2The defendant was indicted at the October term, 1877, for an assault and battery. He appeared at that term, entered . into a recognizance, and the case stood over till next term. At the February term he appeared and filed a plea in abatement, alleging the fact that some five of the grand jurors who found the indictment were of kin to him within the prohibited degrees.
¶3A motion was made by the Attorney General to strike out- this plea, which was overruled by the court.
¶4We need not consider the matter of the plea in the aspect of the case as presented, as we hold the plea in abatement was improperly filed after the gen*275•eral continuance at the first term, it having been filed at the next term after said appearance. Eor this cause the plea should have been stricken out.
¶5The case is reversed and remanded to be tried on its merits.