GREEN, J. We are quite unable to agree with the learned court below in the interpretation they gave to the written contract of the parties. There was no agreement by the defendant to furnish any steam whatever to the plaintiff, and there was no leasing of any property or granting of any privilege which makes it necessary for the law to imply a contract by the defendant to furnish steam enough to the plaintiff to enable him to carry on the work of the foundry up to its ordinary capacity. The things leased to the plaintiff are (1) certain premises known as the “foundry building;” (2) yard space for necessary stock and material; (3) the joint use of the pattern-shop; and (4) the engine-room adjoining the foundry. There is certainly nothing here to indicate any obligation by the lessor to furnish any steam to the lessee for any purpose. Ordinarily a foundry building and an engine-room contain their own motive power, and, if they do not, such an extraordinary omission, if it is intended that the lessor shall supply the power, would be provided for by express terms in the lease. But certainly there is no implication in the mere lease of a foundry building that the lessor shall furnish the steam to run it. In the lease, next after the subjects of the demise are defined, follows the complete obligation of the lessee to pay the lessor $500 rent for one year, payable monthly. The rent, therefore, was to be paid as the consideration of the things demised, and these did not include any steam, either expressly or by implication.

Then another term is added to the contract by which it is provided that the lessee “shall pay fifteen cents per hour for the steam furnished to his engine” by the lessor, “and he shall have the right to use the tools in the pattern-shop; but, in consideration therefor,” the lessor “shall have the use, Without charge, of the power of the engine” of the lessee whenever they shall require it in the pattern-shop. The plain and obvious meaning of these words is that for whatever steam may be furnished by the lessor to the lessee’s engine, the lessee shall pay 15 cents an hour, but the lessor does not agree to furnish any steam, and the lessee does not agree to take any. But if steam is actually furnished to the engine, which means necessarily, also, if it is used, the lessee agrees that he will pay 15 cents an hour for it. If the furnishing of steam by the lessor was a necessary incident to his lease of the premises, there would be an implied obligation to furnish it, and the case would be parallel to Watson v. O’Hem, 6 Watts, 362, and Koch’s Appeal, 93 Pa. St. 434, and the kindred cases. But it is too manifest to require discussion that there is no such implied obligation. This being the case, when the lessee simply agrees to pay for steam furnished without requiring the lessor to furnish any, and without the lessor agreeing to furnish any, there is no other obligation than that which appears in the words employed. When the owner of a stone quarry or an ore mine leases his premises to one who is to pay a fixed price per ton for all stone or ore taken out, the very purpose of the lease is that stone or ore shall be taken out, and hence

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there is an implied obligation to do so. But that obligation arises from a consideration of the necessary object and purpose of the contract. Without it the contract is a practical nullity. But no such situation arises out of the contract we are considering, and hence no obligation larger than its terms impose arises from it. These views require us to sustain, as we do, the fourth, fifth, tenth, thirteenth, fourteenth, and fifteenth assignments of error.

We sustain the first, second, and third assignments, because the value of the lease, or any part of it, is not the measure of the damages to which the plaintiff is entitled for a breach of a particular covenant contained in it. If such a covenant was broken, the actual damage which resulted from the actual breach can be and should be shown. To ask what was the value of the lease lets in the wildest and most speculative conjectures which the friendly zeal of the party’s witness may choose to indulge in. If there was an injury done, let the witness state what it was, and how it was done; and, if he can express the value of that particular injury in figures, let him do so.

We think the questions covered by the seventh and eighth assignments should have been allowed, as they bore directly upon the allegation of damages from loss of the use of the tools; and, that subject being an open one, presented by the plaintiff, the defendant was as much entitled to give evidence in reply as the plaintiff was in support of it.

We do not sustain the ninth assignment, as it is only a general statement Of the law applicable to any finding of damages, and we see no 0bjection to it. The same is true of the twelfth assignment.

The sixteenth and seventeenth assignments are not sustained.

Judgment reversed, and venire de novo awarded.

MUNICIPAL CORPORATIONS—DEFECTIVE WAY—PETITION IN WRONG COUNTY— TRANsFEn—TIME—NOTIOE—GEN. LAWS N. H. CH. 75, § 9. A petition for leave to file a claim against a town for damages, presented in a wrong county within six months of the injury, (Gen. Laws, 0. 75, § 9,) may be transferred to the proper county court after the six months has expired, and notice may then be given to the defendant.

Reserved case from Strafi'ord county.

Petition under Gen. Laws, 0. 75, § 9, for leave to file a claim for damages. The petition was originally filed in Belknap county, within six months of the injury complained of, but was not then entered on the docket. After six months the case was entered on the Belknap docket, and, by order of court, transferred to Straiford, where it should have been brought, and where an order of notice to appear was served on the defendants. To the court’s denial of their motion to dismiss, the defendants excepted.

T. Cogswell, for plaintiff.
Worcester o": Gufney, for defendants.

DOE, C. J. The statute does not require notice of the petition to be given during the six months within which the application must be made. The application was made to the court when the petition was filed, and presented to the justice holding the trial term, (Clark v. Slayion, 63 N. H. 402; S. C. 1 Atl. Rep. 113,) and this was done seasonably. Notice in such cases is not to be indefinitely delayed; but no fault of that kind appears. The only error was in making the application in a wrong county, and that was cured by the transfer. Bartlett v. Lee, 60 N. H. 168.

Exception overruled.

BINGHAM, J ., did not sit. The others concurred.

BALDWIN v. CITY OF ELIZABETH.
(Court of Chancery of New Jersey. October 2.1, 1886.)

1. TAXATION — SALE or LAND FOR LONGER TERM THAN FIFTY YEARs—ELIZABETH CITY.

Thecharter of the city of Elizabeth makes void sales of land for non-pay

ment of taxes for a longer term than 50 years. 2. SAME—RESTRAINING COLLEOTION.

Equity is unwilling to interfere to restrain the collection of a tax which is illegal and void, merely because of its illegality, but requires that there be some special circumstances attending the injury threatened, to bring the case within some recognized head of equity jurisdiction.

3. EQUITY—NEW JERSEY AOT To QUIET TITLES—APPLICATION.

The New Jersey act to quiet titles does not apply to cases where a party in possession of land can throw the hostile claim into a course of law, and thus get rid of the cloud upon his title; or when, having had the power to do so, he has lost it by his indiscretion.

4. TAXATION—~CONsTITUTIONAL PROVISION. The constitutional provision that “property shall be assessed for taxes un-7 der general rules, according to its true value,” does not affect the mere machinery for the assessment or collection of taxes.

Bill to quiet title. On final hearing on pleadings, proofs, and stipulations of counsel.

W. P. Wilson, for complainant.

F. Bergen, for defendant.

RUNYON, Ch. The bill is filed under the act “to compel the determination of claims to real estate in certain cases, and to quiet the title to the same.” With this case, several others, brought by other complainants ' against the same defendant, for like relief, and under a similar state of facts, were argued. The questions presented under all of them will, for convenience, be considered and disposed of in this opinion. The city _ sold land of the complainants for non-payment of taxes for years prior to 1879 for the term of 900 years, becoming itself the purchaser at the sale.

It is insisted that such sales, and the certificates made in pursuance thereof, are nullities, because a sale of land to the city for unpaid taxes for a term exceeding 50 years is unauthorized by law.

The city sold land of the complainants for the unpaid taxes of 1879, and became itself the purchaser, and such sale was for a term of 50 years; but the complainants insist that the sale was made after the expiration of the lien for taxes given by law, and it appears that those taxes were assessed under an unconstitutional law. There are, upon the properties of the complainants, assessments for municipal improvements laid by the city under the city charter, which provided for laying such assessments by a rule which was in contravention of the constitutional rights of the land-owners, and the assessments were so laid. It is insisted by the complainants that this court should declare that such assessments, for that reason, constitute no lien upon the lands. ()n the other hand, the city insists that this court ought not to declare the before-mentioned tax sales and certificates null and void except upon condition that the complainants respectively pay the taxes, with interest, thereon assessed against them, respectively, for non-payment whereof their lands were sold.

The sales of land to the city for a term of 900 years for non-payment of taxes was unauthorized by law. Schatt v. Grosch, 31 N. J -. Eq. 199; Morgan v. Elizabeth, 44 N. J. Law, 571. It should be decreed (but on terms as hereinafter stated) that the sales, and the certificates thereof, convey no estate or interest in the property. The sales of land for the taxes of 1879 were for a term of 50 years. The tax was, however, assessed under an unconstitutional law. Morgan v. Elizabeth, ubi supra. The complainants insist that on that ground the sales and certificates for that tax should be declared null and void, and that it should be decreed that the tax is no lien or incumbrance upon the property. The complainants had a remedy at law by certiorart'. Revision, p. 1045, § 16; Morgan v. Elizabeth, at supra. If they have lost it, it is by reason of their laches. This court has always been unwilling to interfere to restrain the collection of a tax which is illegal and void, merely because of its illegality, but requires that there be some special circumstances attending the injury threatened to bring the case within some recognized head of equity ju— risdiction. Dusenbury v. Newark, 25 N. J. Eq. 295; Bogert v. Elizabeth, Id. 426; Lewis v. Elizabeth, Id. 298. And in Jersey City v. Lembeck, 31 N. J. Eq. 255, it was expressly held that the act to quiet titles does not apply to cases where a party in possession of land can throw the hostile claim into a course of law, and thus get rid of the cloud upon his title, or when, having had the power to do so, he has lost it by his inaction.

It is urged that the sales for the tax of 1879 were made after the expiration of the law. The charter of the city provides that the tax shall be a lien for four years, (the sale took place within that period ;) but the general law provides that the lien for unpaid taxes shall continue for two years. Both provisions were in force when the amendments to the constitution were adopted, and it is argued that the provision of the constitution, as amended, that “property shall be assessed for taxes under gens cral rules, according to its true value,” by its own force abrogated the provision of the charter, and substituted for it that of the general law. It is enough to say, upon this head, that the constitutional provision does not affect the mere machinery for the assessment or collection of taxes. Trustees, etc., v. Trenton, 30 N. J. Eq. 667.

As to the sales for 900 years, above mentioned. The act entitled “A general act respecting taxes, assessments, and water-rates,” (P. L. 1881, p. 194,) provides that no tax, assessment, or water-rate shall be set aside or reversed for any irregularity or defect in form or illegality in assessing, laying, or levying it, or in the proceeding for collecting it, if the person against whom or the property upon which it is assessed or laid in fact is liable to taxation, assessment, or imposition in respect of the purposes for which the tax, assessment, or water-rate is laid, assessed, or imposed, but that the court shall make a new assessment, etc. It does not provide that no invalid or unlawful sale for a lawfully imposed tax, assessment, or water-rate shall be set aside. Nor does it provide that, if the court shall set aside any such sale, it shall direct a new one, or shall set it aside only upon terms of payment. It deals only with the tax, assessment, or rate. And when the tax, assessment, or rate has been lawfully laid, assessed, or imposed, but the sale for it is a nullity, the statute has no applicability. To hold otherwise would, in effect, extend the lien given by law for such assessments indefinitely, and practically annul the limitation as to the term for which land may be sold for non-payment thereof. Such was not the intention of the legislature. But when, as in this case, the land-owner seeks the aid of this court to relieve him from the tax sale, and the tax is lawful, it is but reasonable that the court should, on the principle that he who would have equity must do equity, require, as terms of setting aside the sale and certificate, that he pay the tax, and the interest thereon at the rate fixed, from time to time since the tax was levied, by the general law of the state limiting the rate of interest upon contracts. Gage v. Pumpelly, 115 U. S. 454; S. C. 6 Sup. Ct. Rep. 136.

As to the assessments for municipal improvements. The act of 1881 entitled “An act concerning past-due assessments in certains towns and townships of this state,” (P. L. 1881, p. 38,) provides that the com- ' mon council, board of township committee, or governing body of any town or township may reduce assessments laid upon illegal and erroneous principles, and without regard to the peculiar benefit derived by reason thereof, or may agree to arbitrate the assessments upon the application of the owner or owners of the property, and that if the common council, board of township committee, or other governing body shall refuse to arbitrate, arbitrators may be appointed by a justice of the supreme court on like application. This beneficial and remedial act renders it unnecessary for the owner of land assessed under unconstitutional laws for benefits for municipal improvements to have recourse to equity for relief, and its provisions are so just and equitable that he should be required to obtain relief by application under it. See Newark v. Schuh, 34 N. J. Eq. 262.