The statute (The Code, sec. 1292) provides that, "if any husband shall separate himself from his wife and fail to provide her with the necessary subsistence, according to his means and condition in life, etc., the wife may apply for a special proceeding to the judge of the Superior Court for the county in which he resides, to have a reasonable subsistence secured to her and to the children of the marriage, from the estate of the husband," etc.
Postponing for the present the discussion of the sufficiency of the reason offered by him for discontinuing the payment of an allowance to *Page 175 her, and of the validity of the agreement under which it was paid, we deem it best to first pass upon the question that confronts us in limine, whether the plaintiff can, either under the statute or in the assertion of a right conceded to her by our courts of Equity and not destroyed by the latter marriage acts, maintain this action against her husband. It is admitted that the defendant was married to her; that he separated from her, and for some time before the action was brought had failed to provide for her support. It follows necessarily that if the court had jurisdiction of this proceeding, she had the right to recover, unless precluded by some matter set up in bar by the defendant. The plaintiff had the privilege of issuing a summons, returnable in vacation, as in other special proceedings, except that it was required to be heard before the judge, not the clerk of the court. The fact that she did not avail herself of that right, but fixed the return day during the term, when it would be presumably more agreeable to the court and suitors to have it determined, seems to us to furnish no sufficient reason for doubting the jurisdiction of the court. The preparation by the compilers of The Code of a heading for the section, printed in different type and intended to convey an idea of its contents without reading, and which was also a part of the index to the volume, in no way affects the construction of the language of the section itself, when its meaning is so perfectly (293) obvious. Were we at liberty to treat it as a preamble, its aid could not be invoked in ascertaining what was the legislative intent, unless that intent had been expressed in doubtful terms. Randall v. R. R.,104 N.C. 410. Under the common-law rule, which left the husband at liberty always to contest the wife's agency, as well as the question whether supplies provided her were necessary and suitable to her station in life, the wife was often subjected to inconvenience, if not suffering, in providing for the support of herself and her children. It was because she was relieved of this hardship by being allowed to bring her action against her husband (at first by prochein ami) in a court of Equity, that the courts of Equity in some of the states assumed jurisdiction of the enforcement of this obligation, as well as of some contracts not recognized by courts of law, where her existence was deemed to be merged in that of the husband. 1 Bishop Marriage D., secs. 1385, 1395, and 1397; 3 Pomeroy Eq. Jur., 1299; 1 Bishop Married Women, sec. 643; 1 Pomeroy Eq. Jur., sec. 171 (p. 196, 2 Ed.); Stewart Husband and Wife, sec. 74.
It is not necessary that we should determine whether this Court has aligned itself with those which sustain the exercise of this equitable jurisdiction, or with those holding the opposite view, since whatsoever may have been the rule before the enactment of the statute, there is no *Page 176 room for doubt as to the intention of the Legislature. Whether it was passed in affirmance of an existing principle or by way of establishing a new doctrine is immaterial if by the terms of the statute the right to sue for a support without asking for a divorce is given to a wife who has been deserted and left unprovided for by her husband. Where the statute makes the proceeding plainly but a means of obtaining the reasonable subsistence, which the law makes it the duty of the husband (294) to furnish to the wife, the headlines cannot be allowed the effect of uselessly cumbering it with the requirements as to form prescribed for applications for divorce and alimony by section 1287, for reasons which are inapplicable to a suit of this kind.
The allegations in the answer of infidelity on the part of the wife are too vague and indefinite to constitute the basis of an action for divorce, and are entitled to no consideration in determining the question of the husband's liability in this proceeding. Sparks v. Sparks, 69 N.C. 319. While it is conceded that the statute (The Code, sec. 1831) recognizes the validity of deeds and agreements of separation between husband and wife, where they are living apart at the time of execution (Sparks v.Sparks, 94 N.C. 527, and 1 Bishop M. and D., secs. 1251, 1269, 1270, and 1303), it is equally true that, while such contracts are tolerated, they have not been looked upon with favor by this Court. Smith v. King,107 N.C. 273. If we concede that the plaintiff had the right to demand that the agreement mentioned in the answer be enforced, had she chosen to sue upon it, the defendant will not, nevertheless, be allowed, after repudiating it by ceasing to pay or offer to pay according to its provisions, to set it up as a bar to her recovery in this action, even though she may have demanded by letter a sum larger than that which she had stipulated in the agreement to take as a sufficient allowance. It is not the contract to pay a certain sum in lieu which quits the husband of his duty to furnish a support for the wife when he is discharged, but the actual payment or attempt or offer to pay in fulfillment of his agreement. Kelly's Contracts of Married Women, p. 75; 1 Cord's Legal and Eq. Rights of Married Women, secs. 144, 145. Having ceased to perform his agreement to pay the monthly allowance referred to in the pleadings, it will not avail him now as a defense to this (295) proceeding for maintenance on the part of the plaintiff, to whom he admits that he was married, and whom it is conceded that he afterwards deserted. Whether her conduct, from other standpoints, has been commendable or not, looking at this case only in its legal aspect, we find no averment in his answer that is sufficient in law to discharge him from the duty which grows out of his admitted relations to her.
The only remaining question is whether the order of the court that *Page 177 the plaintiff is entitled to a support and costs, and that the cause be retained for the jury to inquire as to the amount to be allowed for maintenance, was such a judgment as the court ought to have rendered. As we have said, this is denominated a special proceeding, with the special peculiarity that it is returnable before the judge, who is substituted for the clerk. When issues of fact are raised, therefore, it must have been the intention of the Legislature that the judge, like the clerk, shall enter the cause on the docket for trial by jury. The Code, secs. 116, 278, etseq. If, for instance, the marriage and subsequent separation had been denied by the defendant, it would have been the duty of the judge, whether the cause had come before him in vacation or during the term, to have ordered a trial by jury of the issues of fact so raised. But it is the province of the judge, not of the jury, to ascertain and adjudge what is a reasonable allowance for the maintenance of the wife. What are necessaries suitable to the station in life of an infant or a femecovert is a question for the jury; but where facts are found or admitted which entitle a wife to a statutory allowance for support, it becomes the duty of the judge, as in the case of fixing the amount of alimony, to either hear evidence himself or to order a reference to ascertain such facts as to the income of the husband, the value of his estate, etc., as will enable him to determine what is "a reasonable (296) subsistence, according to his (the husband's) condition and circumstances," as the statute declares "it shall be lawful for such judge" to do.
The judgment, therefore, must be modified, so as to leave the judge at liberty to ascertain the condition and circumstances of the defendant and make such allowance as he may deem just. Let the defendant pay the costs of the appeal.
Modified and affirmed.
Cited: S. v. Woolard, 119 N.C. 781; Skittletharpe v. Skittletharpe,130 N.C. 75; Ellett v. Ellett, 157 N.C. 164; Crews v. Crews, 175 N.C. 171;In re Chisholm, 176 N.C. 213; Walton v. Walton, 178 N.C. 75; Allenv. Allen, 180 N.C. 467; Morris v. Patterson, ib., 486. *Page 178