
    Dunlap, in error, versus Atkinson.
    "When, from tie usual course of proceeding in Court, the law allows a departure under a prescribed condition, an assignment of errors, based upon the departure, must negative the performance of the condition.
    
      Proof that the condition was not performed, will not aid the defective assignment.
    Error to reverse a judgment recovered in this Court by Atkinson v. Dunlap, in a writ of review, in which the ad damnum was set at $80,00, instituted in the District Court, and brought here upon exceptions.
    The errors assigned were ; first, that the writ of review was not sued out and entered at the term of the District Court, next after the review was granted, but was entered at the second term thereafter; and second, that the action of review was brought in the District Court, and was not appealable, and no exceptions were ever “filed and allowed ” in the case ; wherefore this Court had no jurisdiction to render the judgment, now sought to be reversed.
    It appeared by the record that leave to sue out the Avrit of review Avas granted by the District Court, at its May term, 1847, and that the writ Avas not entered at the then next term of that Court, held in October, 1847; but was entered at its January term, 1848.
    The record also shows, that when the verdict against Dunlap was rendered in that Court, he “ excepted, and entered into recognizance to prosecute his exceptions with effect,” and that in this Court the exceptions were overruled by his consent.
    
      Webster, for the plaintiff in error.
    1. The statute required the writ of revieAV to be entered at the term next after it was granted, unless for special reasons, leave was obtained to enter it at the second term; chap. 124, sect. 5.
    In this case no such leave was obtained, or asked. The record shoAvs none ; yet the entry was not made until the second term.
    
      For this error, the judgment is reversible. 5 Mass. 489 and 525; 7 Mete. 590; Co. Lit. 228, b.
    Omission to enter till the second term was a discontinuance.
    2. The action in the District Court was not appealable, its ad damnum being set at only eighty dollars. No appeal was attempted, neither were exceptions filed and allowed. The records show none. Exceptions are merely statutory remedies, and the statute must be strictly followed. Consent cannot give jurisdiction. A party may have error for want of jurisdiction in the Court, although it be taking advantage of his own wrong. Jordan v. Dennis, 7 Mete. 590; 6 Wend. 465; 2 Cranch, 126.
    
      Abbott and Foster, for the defendant in error.
   Wells, J., orally.

— The writ of review was not entered, until the -second term after it was granted. But the statute authorizes that course under special conditions. The assignment of errors does not negative the existence of those conditions. The action may have been rightfully entered, and yet every allegation of the assignment may be true. Upon such an assignment, no reversal can be based. Proof, whether by the record or otherwise, cannot aid an assignment so defective..

The second assignment assumes that exceptions must be “filed” and allowed in the District Court. But it is not requisite to “file” exceptions. They are to be “ alleged,” and when •allowed are effectual to stay proceedings in that Court. The record shows that the plaintiff took exceptions, that they were allowed, and entered, and by his consent overruled hi this Court. This was sufficient.

The plaintiff in error, takes nothing by the writ.  