We are not to be understood as deciding that this case is properly before us for review upon the facts developed on the hearing in the court below. Even if it were, we would be compelled to say that the bond and agreement of November 25, 1899, were not a bar to the proceeding commenced by the wife under the Act of April 13, 1867, P. L. 78, to compel him to contribute to her support and maintenance. The agreement relates simply to the custody of their child. By the bond he simply engaged to contribute a certain weekly sum for the wife’s support so long as they should live separate and apart. But there was no agreement for actual and immediate separation, accompanied by, or embracing as part of its terms, a reasonable provision for the wife’s support. Indeed, there was no agreement for separation upon any terms. Surely a husband cannot obtain immunity from prosecution under this act by inducing his wife to accept his naked promise to pay a weekly sum for her support, which he does not keep. The contention, that, by a sort of novation, his obligation under the bond was substituted for his marital obligation, whereby the latter was extinguished, cannot be sustained. The case is plainly distinguishable from Commonwealth v. Richards, 131 Pa. 209, in every essential particular.
The order is affirmed, and the record is remitted to the court beloAv to the end that it be fully carried into effect.