The defendant excepted and assigned error to the foregoing judgment on the ground that the court below should have held that the marriage between the parties, on 7 May, 1930, discharged the consent judgment of 11 April, 1929. The exception and assignment of error cannot be sustained.
C. S., 4339, is as follows: “If any man shall seduce an innocent and virtuous woman under promise of marriage, he shall be guilty of a felony, and upon conviction shall be fined or imprisoned at the discretion of the court, and may be imprisoned in the State prison not exceeding the term of five years; Provided, the unsupported testimony of the woman shall not be sufficient to convict; Provided further, that marriage between the parties shall be a bar to further prosecution hereunder. But when such marriage is relied upon by the defendant, it shall operate as to the costs of the case as a plea of nolo contendere, and the defendant shall be required to pay all the costs of the action or be liable to imprisonment for nonpayment of the same.”
Under the statute the defendant was tried on a regular bill of indictment charging seduction under promise of marriage, and entered a nolo contendere at April Term, 1929, of Brunswick Superior Court.
*473 “Nolo contendere” is defined as follows: “I will not contest it. The name of a plea in a criminal action, having the same legal effect as a plea of guilty, so far as regards all proceedings on the indictment, and on which the defendant may be sentenced.” Black’s Law Die. (2d ed.),
p. 820.
The prosecutrix had the legal right to indict defendant under C. S., 4339, and also sue him in a civil action for tort. It is only necessary for plaintiff’s recovering damages in her civil action, in tort, for wrongful seduction, to show that the defendant induced the intercourse by persuasion, deception, enticement, or other artifice; not requiring, as in prosecution under C. S., 4339, supra, that the intercourse was procured under a promise of marriage, though when existent this may be shown in the civil action as a means used by the defendant to accomplish his purpose. Hardin v. Davis, 183 N. C., 46, 110 S. E., 602.
The record discloses that after the defendant had entered a plea of nolo contendere, practically a plea of guilty (1) prayer for judgment was continued upon the defendant paying all costs, etc. (2) “And the sum of $300 to prosecutrix on this date, and the further sum of $1,200 in equal monthly installments of $50.00 on or before the 1st day of each and every month, beginning on 1 May, 1929, and continuing until the total sum of $1,200 is paid. Provided defendant may, at his option, pay the total amount of said allowance of $1,200 immediately to the clerk of the Superior Court.” The defendant complied in part with the judgment in the payment of all costs, the $500 to attorneys representing the prosecutrix; the $300 to the prosecutrix; had given bond in the sum of $2,500 for the faithful performance; had executed and recorded the mortgage, Book 49, page 436, on real estate upon his electing to pay the $1,200 to the prosecutrix in monthly installments, and had paid into the court for the prosecutrix the sum of $300 in six monthly installments of $50.00 each, leaving at time of marriage $900 still unpaid. From the judgment there was no appeal. It was a consent-compromise judgment.
On 7 May, 1930, over a year afterwards, defendant married the prosecutrix and they are living together as husband and wife. The defendant contends that the marriage canceled the consent judgment. ¥e cannot so hold.
In Bank v. Mitchell, 191 N. C., at p. 193, speaking to the subject, citing numerous authorities, is the following: “It is well settled in this jurisdiction: If parties have the authority, a consent judgment cannot be changed, altered or set aside without the consent of the parties to it. The judgment, being by consent, is to be construed as any other contract of the parties. It constitutes the agreement made between the parties *474and a matter of record by tHe court, at their request. The judgment, being a contract, can only be set aside on the ground of fraud or mutual mistake.” Schofield v. Bacon, 191 N. C., 253; Ellis v. Ellis, 193 N. C., 216; Cox v. Drainage District, 195 N. C., 264; Cary v. Templeton, 198 N. C., 604.
In Board of Education v. Commissioners, 192 N. C., at p. 279, citing numerous authorities, we find: “The law will not even inquire into the reason for making a decree, it being considered in truth the decree of the parties, though it be also the decree of the court, and their will stands as a sufficient reason for it.”
The statute says “That marriage between the parties shall be a bar to further prosecution hereunder. But when such- marriage, is relied upon by the defendant it shall operate as to the cost of the case as a plea of nolo contendere!’ Black’s Law Die., supra, at p. 958: “Prosecution: In criminal law. A criminal action; a proceeding instituted and carried on by the due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime,” citing numerous authorities.
The statute clearly indicates that the marriage must be before the party is adjudged guilty for defendant to get the benefit of the statute. In the present case, defendant practically pleaded guilty and a consent judgment was entered. “This judgment consented to by the State, by the prosecutrix and by the defendant.” The defendant contends: “That where the parties have reconciliation, and marry, and are living together as husband and wife, the reason no longer exists for the payinent provided for in the judgment and secured by the bond and mortgage, and that the bond and mortgage should be canceled,” citing Smith v. King, 107 N. C., middle of p. 276, and Archbell v. Archbell, 158 N. C., 408 et seq.
The above cases concern deeds of separation between husband and wife, not favored in law. The Smith case, supra, is cited in the Arch-bell case. The conduct of the wife in resuming the conjugal relations in that case, by returning and living with her husband and receiving support from him, rescinded and canceled the deed of separation. The wrong was committed in the present case and a judgment was solemnly entered into and consented to by all the parties before the marriage. Over a year afterwards the parties were married. The judgment cannot be set aside unless a civil action by defendant is instituted alleging and proving fraud or mistake, or the wife relents and consents to a cancellation. See Myers v. Barnhardt, ante, 49; Peeler v. Peeler, ante, 123. The judgment below is
Affirmed.