Hosmer, Ch. J.
The plaintiff has brought an action, as judge of probate, on the penal part of a bond. Having prayed oyer of the condition, and having recited it, the defendants pleaded performance. To this the plaintiff has replied, setting forth a number of breaches, viz. in the administrator’s not having made and exhibited an inventory within the period specified in the condition of the bond, nor a true and just account of his adminisstration ; and in not having paid to certain creditors the sums found due to them, by the commissioners on the estate of the deceased, which had been represented insolvent. To the replication the defendants, abandoning their plea entirely, have rejoined ; and after having distinctly admitted, that the inventory was not made and exhibited, nor the administration account, and that the debts were not paid, all as the plaintiff had alleged, they attempt to show a justification of these omissions. A more gross and palpable departure from the plea, it is not possible to conceive. “ A departure in pleading, is said to be, when a party quits or departs from the case or defence, which he has first made, and has recourse to another ; it is when his replication or rejoinder contains matter not pursuant to the declaration or plea, and which does not support or fortify it. A departure in pleading is not allowed, because the record would, by such means, be spun into endless prolixity ; for, if it were permitted, he who has departed from and relinquished his first plea, might, in every stage of the cause, resort to a second, third, or even further defence, and thereby pleading would become infinite ; and if parties were permitted to wander [380]*380from fact to fact, forsaking one to set up another, no issue could be joined, nor could there be any termination of the suit.” 1 Chitt. Plead. 618. 619. Richards & al. v. Hodges, 2 Saunders 84. a. n. 1 It would be extraordinary to admit, that the defendants may plead performance, and afterwards rejoin that they did not perform for sufficient reasons; thus, in the same case, saying yes and no to the same point of controversy.
Still, it has been contended, that a statute passed by the legislature, in May, 1822, has authorized this mode of pleading.
This law has enacted, “ that in any action on note, bond or other contract, to which there is a condition annexed, which condition, and any breach or breaches thereof, are not set out in the plaintiff’s declaration ; and the defendant having prayed oyer of, and set out such conditions, pleads performance thereof, and the plaintiff replies thereto, setting forth any breach or breaches of such condition, the defendant may, with leave of court, rejoin as many several matters, by distinct rejoinders, as he might have pleaded, had such condition, and breach or breaches thereof, been set forth in the declaration,” The meaning of this law, having regard to the expression and subject matter of it, is extremely perspicuous. By the 31st section of the statute for the regulation of civil actions, p. 43. it is made “ lawful for the defendant in any suit, to plead, by special leave of court, as many several matters by distinct pleas, as he shall think necessary for his defence.” This act, and the one relied on by the defendants, are expressed, in all essential particulars, precisely in the same phraseology ; and, beyond question, had the same object. The words “ several matters by distinct rejoinders, with leave of the court,” in the late law, are almost a transcript of the expression in the former act, “ by special leave of the court, as many several matters in distinct pleas ;" and it is impossible to doubt, that this act was before the draftsman of the bill, by the defendants relied upon, when he drew it, and in the contemplation of the legislature when they passed it. By authorising distinct rejoinders, when the breaches first came out in the replication, it was intended to give the defendant the same benefit of double pleading, as before was imparted, when the breaches are stated in the declaration ; and this is the whole scope and object of the law. But to empower a person to set up one defence, and then admit the falsity of it, and depart to another, is an absurdity too gross to ascribe to the legislature, unless both the words and object of the law imperiously require such construction.
[381]*381If the absurdity were admitted, it would not aid the defendants. They have rejoined without leave of the court; but the statute authorises the novel pleading only “with leave of the court.” Their rejoinder is single and inseparable; but the law sanctions only “several matters in distinct rejoinders.”
I conclude, on this head, that the defendants’ rejoinder is incurably defective, the facts not having been legally put on the record ; and they are not admitted by the demurrer, which concedes nothing that is not well pleaded. The replication, then, is unanswered ; and the breaches of the condition of the bond, are palpable.
This settles the controversy in the plaintiff’s favour ; but as there is a difference of opinion on this point, I will briefly attend to the other questions made in the case.
Where a covenant is express, there must be an absolute performance ; nor can it be discharged, by any collateral matter whatever. If a person, for example, covenant to pay rent for a house, at a specified time, and the premises are burnt down, so that he had no enjoyment for the whole time claimed, he is bound to make payment ; for the covenant was absolute. Monk v. Cooper, 2 Strange 763. And where the master of a ship, by charter-party, covenanted to be at Carolina, by a certain time, though it appeared that it was impossible he could be there at the time, by reason of storms and other causes; yet it was held, that he was bound to go, at all events, and was liable on the covenant, Shubrick v. Salmon, 3 Burr. 1637. Contracts implied by operation of law, admit of a more benign construction and are moulded according to the dictates of reason and justice ; but express covenants are strictly construed ; and the person covenanting not only assumes to do the matter stipulated, but takes on himself the risk of performance. Chesterfield v. Bolton, Comyns’ Rep. 627. Jeakill v. Linne, Hetley 54. Paradine v. Jane, Aleyn 26.
If the condition of a bond be possible, at the time of making it, and afterwards it becomes impossible, by the act of God, of the law, or of the obligee, there the penalty of the obligation is saved. Co. Litt. 206. 2 Black. Comm 340. But where the act stipulated is not strictly impossible, nor made so, in either manner beforementioned the omission to perform it, is an absolute and unexplainable breach of the contract. To apply these principles. The inventory, in the case before us, the defendant covenanted that the administrator should make and exhibit, on the 14th June, 1821 ; but it was not made and ex[382]*382hibited until the 13th of August succeeding; and hence, the penalty of the bond in question was thereby forfeited.
It has been contended, that the condition of the bond was illegal ; and that the non-performance was waived; but on no legal foundation.
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Hosmer, Ch. J.
The plaintiff has brought an action, as judge of probate, on the penal part of a bond. Having prayed oyer of the condition, and having recited it, the defendants pleaded performance. To this the plaintiff has replied, setting forth a number of breaches, viz. in the administrator’s not having made and exhibited an inventory within the period specified in the condition of the bond, nor a true and just account of his adminisstration ; and in not having paid to certain creditors the sums found due to them, by the commissioners on the estate of the deceased, which had been represented insolvent. To the replication the defendants, abandoning their plea entirely, have rejoined ; and after having distinctly admitted, that the inventory was not made and exhibited, nor the administration account, and that the debts were not paid, all as the plaintiff had alleged, they attempt to show a justification of these omissions. A more gross and palpable departure from the plea, it is not possible to conceive. “ A departure in pleading, is said to be, when a party quits or departs from the case or defence, which he has first made, and has recourse to another ; it is when his replication or rejoinder contains matter not pursuant to the declaration or plea, and which does not support or fortify it. A departure in pleading is not allowed, because the record would, by such means, be spun into endless prolixity ; for, if it were permitted, he who has departed from and relinquished his first plea, might, in every stage of the cause, resort to a second, third, or even further defence, and thereby pleading would become infinite ; and if parties were permitted to wander [380]*380from fact to fact, forsaking one to set up another, no issue could be joined, nor could there be any termination of the suit.” 1 Chitt. Plead. 618. 619. Richards & al. v. Hodges, 2 Saunders 84. a. n. 1 It would be extraordinary to admit, that the defendants may plead performance, and afterwards rejoin that they did not perform for sufficient reasons; thus, in the same case, saying yes and no to the same point of controversy.
Still, it has been contended, that a statute passed by the legislature, in May, 1822, has authorized this mode of pleading.
This law has enacted, “ that in any action on note, bond or other contract, to which there is a condition annexed, which condition, and any breach or breaches thereof, are not set out in the plaintiff’s declaration ; and the defendant having prayed oyer of, and set out such conditions, pleads performance thereof, and the plaintiff replies thereto, setting forth any breach or breaches of such condition, the defendant may, with leave of court, rejoin as many several matters, by distinct rejoinders, as he might have pleaded, had such condition, and breach or breaches thereof, been set forth in the declaration,” The meaning of this law, having regard to the expression and subject matter of it, is extremely perspicuous. By the 31st section of the statute for the regulation of civil actions, p. 43. it is made “ lawful for the defendant in any suit, to plead, by special leave of court, as many several matters by distinct pleas, as he shall think necessary for his defence.” This act, and the one relied on by the defendants, are expressed, in all essential particulars, precisely in the same phraseology ; and, beyond question, had the same object. The words “ several matters by distinct rejoinders, with leave of the court,” in the late law, are almost a transcript of the expression in the former act, “ by special leave of the court, as many several matters in distinct pleas ;" and it is impossible to doubt, that this act was before the draftsman of the bill, by the defendants relied upon, when he drew it, and in the contemplation of the legislature when they passed it. By authorising distinct rejoinders, when the breaches first came out in the replication, it was intended to give the defendant the same benefit of double pleading, as before was imparted, when the breaches are stated in the declaration ; and this is the whole scope and object of the law. But to empower a person to set up one defence, and then admit the falsity of it, and depart to another, is an absurdity too gross to ascribe to the legislature, unless both the words and object of the law imperiously require such construction.
[381]*381If the absurdity were admitted, it would not aid the defendants. They have rejoined without leave of the court; but the statute authorises the novel pleading only “with leave of the court.” Their rejoinder is single and inseparable; but the law sanctions only “several matters in distinct rejoinders.”
I conclude, on this head, that the defendants’ rejoinder is incurably defective, the facts not having been legally put on the record ; and they are not admitted by the demurrer, which concedes nothing that is not well pleaded. The replication, then, is unanswered ; and the breaches of the condition of the bond, are palpable.
This settles the controversy in the plaintiff’s favour ; but as there is a difference of opinion on this point, I will briefly attend to the other questions made in the case.
Where a covenant is express, there must be an absolute performance ; nor can it be discharged, by any collateral matter whatever. If a person, for example, covenant to pay rent for a house, at a specified time, and the premises are burnt down, so that he had no enjoyment for the whole time claimed, he is bound to make payment ; for the covenant was absolute. Monk v. Cooper, 2 Strange 763. And where the master of a ship, by charter-party, covenanted to be at Carolina, by a certain time, though it appeared that it was impossible he could be there at the time, by reason of storms and other causes; yet it was held, that he was bound to go, at all events, and was liable on the covenant, Shubrick v. Salmon, 3 Burr. 1637. Contracts implied by operation of law, admit of a more benign construction and are moulded according to the dictates of reason and justice ; but express covenants are strictly construed ; and the person covenanting not only assumes to do the matter stipulated, but takes on himself the risk of performance. Chesterfield v. Bolton, Comyns’ Rep. 627. Jeakill v. Linne, Hetley 54. Paradine v. Jane, Aleyn 26.
If the condition of a bond be possible, at the time of making it, and afterwards it becomes impossible, by the act of God, of the law, or of the obligee, there the penalty of the obligation is saved. Co. Litt. 206. 2 Black. Comm 340. But where the act stipulated is not strictly impossible, nor made so, in either manner beforementioned the omission to perform it, is an absolute and unexplainable breach of the contract. To apply these principles. The inventory, in the case before us, the defendant covenanted that the administrator should make and exhibit, on the 14th June, 1821 ; but it was not made and ex[382]*382hibited until the 13th of August succeeding; and hence, the penalty of the bond in question was thereby forfeited.
It has been contended, that the condition of the bond was illegal ; and that the non-performance was waived; but on no legal foundation. The inventory was to be made and exhibited in thirty days from the date of the bond; whereas as it is now said by the defendants, the court of probate, by the 4th section of the law concerning the settlement of estates, (p. 263. ed. 1808.) was prohibited from exacting an exhibition of the inventory until two months had elapsed. By the first section of the act above-mentioned, the only one bearing on the point in question, there is no limitation ; and the 4th section alluded to, has no relevancy to the matter under discussion. It subjects the executor of the last will and testament to a penalty, if he do not cause the inventory to be made and exhibited within two months after the probate of the will. The object of this section, however, is not to limit the judge of probate, but to coerce, by punishment, the performance of a trust. That the executor is subjected to a certain duty, at the precise time of the penalty’s accruing, the law does not intimate; but it does provide, and this is the whole scope of it, that if he omit performance of the trust, more than two months, he shall be punished.
It has been said, that a literal compliance with the condition of the bond, was a legal impossibility, inasmuch as the freeholders for appraisement of the articles inventoried were to be appointed by the court of probate only ; and that this appointment was not made until after the time limited for the exhibition of the inventory had expired. Now, if the course was to appoint the appraisers, why was not this necessary act done? The only answer is, it was not requested by the administrator ; so that the objection is founded on his neglect. But the law has been misconceived. The statute, at the date of the defendants’ bond, and for more than half a year thereafter, empowered the administrator to take two or more disinterested neighbours and friends to the deceased, to appraise the articles inventoried. P. 262. ed. 1808. It was confided to him personally ; and no act of the court was necessary.
It has been insisted, that the acceptance of the inventory, by the judge, at a day future to the time, when, by the condition of the bond, it should have been exhibited, was a waiver of the antecedent breach of contract. Whether a waiver or not must depend on the intention of the party, or the operation of law. There was no express intention to waive; and had there [383]*383been, it would have availed nothing ; fora contract broken, although it may be released, cannot be waived. 1 Pow, on Cont. 416. As little foundation is there to imply a waiver. If anything, it was a waiver by operation of law ; and predicated on what ? Merely, on the performance of an act, by the judge, compulsory upon him, and his indispensible duty, whether the inventory was, or was not, exhibited within the time contracted. Most clearly, the act of the judge had no reference tag: or operation upon, the bond, unconnected, as it was, with the subject before him, and out of sight.
The condition of the bond, then, was broken, by the non-exhibition of the inventory within the time stipulated. It is not necessary to pursue the subject further. The penalty of the bond is incurred, by the defendants ; and the sum recoverable in equity, must be the measure of the judgment. At the same time, I cannot omit remarking, that the condition of the bond has not been performed, in other essential particulars. The administration account was not exhibited within the period provided by the contract; nor were the debts allowed by the commissioners, paid to the creditors pursuant to the administrator’s duty. After the representation of the estate insolvent, he should have obtained a decree of court, postponing the period for the exhibition of his account ; and thus his bond would have been saved. As to the non-payment of the debts, no special demand by the creditors was necessary. There was resting on the administrator a precedent debt or duty ; and the thing to be done, was within his peculiar knowledge. In either of these cases, a request is not legally requisite to sustain the suit 1 Chitt. Plead. 322. 323. 2 Inst. 66. 126. Selman v. King & al. Cro. Jac. 183, Henning’s case, Cro. Jac. 432.
In addition to the preceding observations, it may not be useless to observe, that the causeless delay of the administrator, for a number of months, to obtain an order of sale, after the acceptance of the report of the commissioners, was a mal-administration, and violated the condition of the defendants’ bond. The non-payment of a debt, after it has been ascertained by a judgment of court, or by commissioners, is a breach of the condition of an administration bond, as an unfaithful administration; (Cony & al. v. Williams & al. 9 Mass. Rep. 114.) and the neglect of the administrator to procure the necessary acts of probate, so far from being an excuse, is a breach of trust.
[384]*384The sum recoverable must conform to the average allowed oil the commissioners’ report.
Peters, J. was of the same opinion.
Brainard and Bristol, Js. dissented on the point of departure; but on the other points, they concurred with the Chief Justice.
Judgment reversed.