#### STATE v. JOHN SMITH.

(Filed 20 April, 1910.)

Appeal and Error — Forma Pauperis — Averments- of Good Faith'— Defect Jurisdictional.

The omission in an affidavit. to appeal in forma pauperis of the averment that it was made “in good faith” is of a matter ' of jurisdiction; and the appeal must be dismissed on motion, as a matter of right, and is not one of discretion.

Appeal by defendant from Long, J., at March (Special) Term, .1910, of Foesyth.

Attorney-General for the State.

J. 8. Grogan for defendant.

Pee CubiaM.

The affidavit to appeal in forma pauperis is fatally defective, as it omits the averment that it is made “in good faith,” which is required by Rev., 3278. The appeal must be dismissed on motion as a'matter of right, not of discretion. S. v. Harris, 114 N. C., 830; S. v. Rhodes, 112 N. C., 856; S. v. Jackson, ib., 849; S. v. Shoulders, 111 N. C., 637; S. v. Wylde, 110 N. C., 500; S. v. Tow, 103 N. C., 350; S. v. Moore, 93 N. C., 500; S. v. Payne, ib., 612; S. v. Jones, ib., 617; S. v. Morgan, 77 N. C., 510; S. v. Divine, 69 N. C., 390, cited and approved. S. v. Bramble, 121 N. C., 603; S. v. Atkinson, 141 N. C., 734.

In S. v. Parish, 151 N. C., 659, the Court said: “Unless the requirement of the statute, both as to time and to manner, are complied with, the appeal is not in this Court. The defect is jurisdictional, and we have no power to allow amendment, and the appellee has a right to have the appeal dismissed. S. v. *843 Bramble, 121 N. C., 603; S. v. Gatewood, 125 N. C., 695, and numerous cases there cited.” To same effect S. v. Duncan, 107 N. C., 818; S. v. Payne, 93 N. C., 613.

In S. v. Keebler, 145 N. C., 562, it is said: “In this State an appeal is a right, but not an absolute right. If the appeal bond is not given, or the proper certificate in lieu thereof, the appeal is dismissed.”

Appeal dismissed.