
    Gibson against Laughlin.
    
      December, 1823.
    1, Writ of capias dated and executed 2d day of September, 1822, returnable on 1st ,Monday after 4th Monday In September next, by reference to its date and time of service is to be understood as returnable on 1st Monday after 4lh Monday in September, 1822.
    2, In striking* out plea in abatement as frivolous, the judgment should be that defendantanswer over immediately, and not be final.
    • DEBT by Laughlin against Gibson in the Circuit Court; of Lauderdale County. The Writ of capias was dated and eXecuted.bn the 2d day of September, 1822, and returnable to the “ next Circuit Court to be held for said County at “ the Court-house in the town of Florence, on the first Mon- “ day after the fourth Monday in September next.” Plea in abatement, (referring to the date of the Writ)—That the Writ was returnable on first Monday after fourth Monday in September next, (to wit, September, 1823,) which was not the first term of said Court after the Writ was issued, but two terms after. On motion of the plaintiff the Circuit Court ordered this plea to be stricken out, and without any, order for defendant to plead over, rendered judgment by default ; and this matter was here assigned as Error.
    
      Coalter, for plaintiff
    cited, 5 Term R. 52. Salk. 700. 3 John. 541.
    
      Wm. B. Martin, for defendant in Error.
   The Chief Justice

delivered the opinion of the Court.

It is the opinion of the Court, that the plea in abatement ■was properly enough stricken out. The return of the Writ is susceptible of being rendered sufficiently certain by a reference to its date and the time of service. At most the term used, (viz.) “ September next,” is one of double import. We are, howevei-, of opinion, that the Circuit Court erred in rendering final judgment on the motion to strike out the plea in abatement as frivolous. The judgment ought to have been, that he immediately answer over. For this Error the judgment of the Circuit Court must be reversed and cause remanded.  