dissenting: I fully concur in the dissenting opinion of Mr. Justice Devin, and in apprehension that silence on the point may be considered as asquiescence, I wish to express my views on another phase of the case — the holding of the Court that the judgment in this case may be enforced by a proceeding for civil contempt.
The suit began as an action for divorce a mensa et ihoro, if we may judge by the statement of the plaintiff when procuring time to file complaint. No pleadings were ever filed; but a consent judgment was entered in the case, which in its preamble and upon its face bases the award made to the feme defendant upon a debt which the husband owed her involved in the terms of a separation agreement.
Paragraph (c) of the judgment requires that the plaintiff shall pay to the defendant the sum of .$6,911 in installments of $100 per month, which apparently under the preamble of the judgment is to repay the defendant for moneys advanced, and to pay $2,500 in installments of $50 a month to F. Ertel Carlyle, Trustee, to discharge certain obligations due *192by both plaintiff and defendant upon tbe borne of tbe defendant in Lumberton, N. C. Tbe concluding part of tbe section of tbe judgment is significant: “Tbe money payments provided herein shall be more than a simple judgment for debt. They shall be as effectively binding upon plaintiff as if rendered under and by virtue of tbe authority of section 1667, Consolidated Statutes of North Carolina, and tbe failure of plaintiff to make tbe payments, as required by this judgment, shall, upon proper cause shown to tbe court, subject him to such penalties as may be required by tbe court, in case of contempt of its orders.”
Tbe judgment, I think, plainly recognizes that it is in reality a judgment for debt, but attempts to bring it within tbe provisions of section 1667 of tbe Consolidated Statutes and tbe penalties provided thereunder, so that it may be enforced by civil contempt. I do not attribute this device, which I regard as exceeding tbe power of tbe court, to tbe learned judge who signed tbe consent judgment.
Section 1667 of tbe Consolidated Statutes provides for alimony without divorce upon a suit instituted by tbe wife, and that statute is applicable only to independent suits for alimony. Reeves v. Reeves, 82 N. C., 349, 352; Skiitletharpe v. Skittletharpe, 130 N. C., 72, 40 S. E., 851; Dawson v. Dawson, 211 N. C., 453, 190 S. E., 749; Silver v. Silver, 220 N. C., 191, 16 S. E. (2d), 834; Shore v. Shore, 220 N. C., 802, 18 S. E. (2d), 353; Pollard v. Pollard, 221 N. C., 47.
It is- clear, then, that in an action for divorce from bed and board, which either tbe wife or tbe husband may bring, there can be no award of alimony without tbe divorce to which it is incident, and we think it is equally clear that tbe court is without power to change tbe character of tbe proceeding into one brought by tbe wife under C. S., 1667, for alimony without divorce. But passing this, tbe plain tenor of tbe judgment is to compel tbe payment of tbe obligations which bad already been assumed both by tbe husband to tbe wife and by tbe wife and tbe bus-band which are recognized as debts, and to make such payments in lieu of alimony or other marital rights or obligations. “In lieu of alimony” means in place of alimony, instead of alimony, and, in iotidem verbis, excludes alimony. The court cannot thereafter by its mere fiat change tbe character of these obligations into alimony — nor, indeed, does it purport to do so; nor can it invest a judgment with a legal character that it does not have under tbe law by a simple fiat “that tbe money payments provided herein shall be more than a simple judgment for debt” — a difficulty which obviously occurred to the parties when the judgment was framed. It protests too much. In so far as the consent of the plaintiff was concerned, he may just as well have agreed that a default in the payment of the debt should subject him to punishment under any criminal statute which may be found in the books.
*193Certainly tbe defendant consented to tbe judgment, but tbe Constitution wbicb forbids imprisonment for debt is not made solely for tbe protection of tbe individual, but to remove a bligbt from our civilization, and it does not intend that any man shall mortgage bis liberty to secure a debt.
Tbe order should be dismissed.