#### R. D. HONEYCUTT v. J. E. WATKINS et als.

(Filed 13 October, 1909.)

Appeal and Error — Forma Pauperis — Defective Affidavit — Jurisdictional — Dismissal of Appeal.

Tiie affidavit for an appeal in forma pauperis is defective which does not aver “that the appellant is advised by counsel learned in the law that there is error in matter of law,” etc.-, Revisal, sec. 597; and the compliance with the provisions of this section being jurisdictional, the appellee can have the appeal dismissed as a matter of right upon the-failure of appellant to comply therewith.

Appeal by defendant from Lyon, J., April Term, 1909, of Wake.

B. G. Beclcwith for plaintiff.

W. J. Peele for defendants.

*653Pee CuRiam :

Tbe motion to dismiss must be allowed. Tbe appeal is in forma pauperis, and tbe affidavit is fatally defective, in tbat it does not contain tbe averment required by tbe first proviso in Eevisal, sec. 597, tbat tbe appellant “is advised by counsel learned in tbe law tbat there is error, in matter of law, in tbe decision of tbe Superior Court.”

Giving bond on appeal, or tbe granting leave to appeal without bond, are jurisdictional, and, unless tbe statute is complied with, tbe appeal is not in this Court, and we can take no cognizance of tbe case, except to dismiss it from our docket. It has been always held tbat if tbe affidavit to procure an appeal in forma pauperis is defective, it is not a matter of discretion with tbe court, but the appellee can have the appeal dismissed as a matter of right. State v. Atkinson, 141 N. C., 734; State v. Payne, 93 N. C., 612; State v. Harris, 114 N. C., 831; State v. Bramble, 121 N. C., 603; State v. Gatewood, 125 N. C., 695, and numerous cases cited in the last two cases.

Appeal dismissed.