delivered the opinion of the court.

The decision of this case depends entirely on the disposition made of the first, assignment of error, which is as follows:—

*639. “ The court erred in rendering a judgment by default at the return term; the declaration not having been filed at the date of the issuance of the writ.” .

As the ruling of the court in the case of Merritt v. White, 37 Miss., p. 440, conclusively settles and disposes of this question, and as we do not feel .disposed to disturb the holding in that case, we have no alternative but to reverse this case.

Let the cause be remanded, with directions that the Circuit Court proceed to render judgment according to law, as though the former judgment had not been pronounced.