This complaint was founded upon a by-law of the city, passed March 2d 1843. The first and second sections provide for the appointment of a clerk of the market, and prescribe his duties. The third fixes the limits of the market, which include North and South Market Streets. The fourth regulates the standing of carts, &c., and the removal of horses, cattle and other incumbrances. Section fifth is the one on which the complaint is founded. It provides that “ no inhabitant of the city of Boston, nor any inhabitant of any town or city, whose dwelling-house is less than twenty miles distant from said Faneuil Hall Market, shall, at any time, without the permission of said clerk, occupy any stand therein, with cart, wagon, sleigh or otherwise, for the purpose of vending an)r articles within the limits of said market, unless he *256shall, before selling or offering to sell such articles, satisfy the clerk, when thereunto requested, that all the said articles are the produce of his own farm, or of some farm not more than three miles distant from his own dwelling-house ; and every person, occupying any such stand, contrary to these prot isions, shall, when directed by the said clerk, forthwith remove without the limits of said market.”

The defendant’s counsel, on the trial, prayed the court to give various instructions in matter of law, which the judge declined, but instructed the jury, that if the defendant was an inhabitant of Boston, or any place within twenty miles, it was no defence that he was acting as the agent and under the instruction of a person residing more than twenty miles distant, who was, at the time, owner of the poultry offered for sale.

1. The first exception taken is, that this instruction was wrong, and that the law, in effect, authorizes persons, living more than twenty miles distant, to use these premises, without complying with the terms of the by-law ; and that what they have a right to do themselves, they have a right to commission another to do. The court are of' opinion that the instruction was right, and that the exception cannot be sustained. It is only by implication, that persons living more than twenty miles distant, or the persons they employ, living more than twenty miles distant, can stand in the market. The maxim, that whatever one is authorized to do himself, he may do by attorney, has its limitations; and one is, when it is expressly prohibited by law. Here it is expressly prohibited; “ no inhabitant,” &c. “shall occupy any stand,” &c. The terms are clear; and we think the object of the by-law is obvious. It is founded on the old policy of the law inhibiting forestalling. It is intended to secure these stands for persons coming to market, with provisions, from a distance, or persons coming to sell their own or their neighbors’ produce. The very purpose of the enactment is, to secure a dealing between the producer and the consumer, without the intervention of any intermediate agent. The next section of the by-law (§6) *257strongly confirms this construction. It provides, “ when any person, lawfully occupying any stand in the streets, within the limits of said market, shall employ any servant or agent to sell, in said market, any articles for him, or on his account, such servant or agent shall not sell any articles upon account of any other person than the person so employing such servant or agent; nor shall any person, lawfully occupying a stand, as aforesaid, be permitted to purchase any provisions or other articles, within the limits of said market, for the purpose of selling the same therein, nor to sell, within said limits, any provisions or other articles, for or on account of any person not lawfully entitled to a stand within the same.” If, therefore, the owner of produce, living more than twenty miles from Boston, wishes to send his articles to the Boston market, and does not choose to come himself, or send his own agent, he must employ a factor who may lawfully sell on commission, without occupying the free stands intended for the encouragement and accommodation of farmers, gardeners and other producers, coming to market with their own produce.

2. Another exception is, that the clerk is to exercise his authority under the control of the mayor and aldermen, and that it does not appear that the mayor and aldermen directed this complaint. The first section of the by-law provides that “ the clerk shall, Under the control of the mayor and aider-men, have the care and superintendence of said market, and it shall be his duty to preserve order in said market, and to execute and carry into effect all the regulations, orders and ordinances, which may be duly made; and it shall be his duty to enter complaints for any violations of said regulations,” &c. This gives the general control to the mayor and aider-men, but does not require their direction to each act of the clerk. On the contrary, it is expressly made his duty, by the by-law itself, to preserve order, &c., and especially to enter complaints for any violations of the orders, &c. for the regulation of the market.

3. It was insisted, that although having a box within the imits of the market might be complained of, as an incum*258brance, under § 4, it could not be charged as occupying a stand, within § 5. We think the act might have been complained of under either section, according to circumstances. It might be an incumbrance, and it might also occupy a stand for the sale of provisions. If the latter was the actual use and purpose, and if a stand could be so occupied, it is a case within § 5, whether within § 4 or not.

4. The next objection is plausible, but we think not sound. It is insisted, that a box cannot come within the enumeration, in the fifth section, of modes of occupying a stand. The words are, “ with cart, wagon, sleigh or otherwise, for the purpose of vending,” &c.; and it is urged that, under a well known maxim of construction, the word “ otherwise ” can only include things ejusdem generis, and that, as all the articles in the enumeration are vehicles, capable of being moved by horses or cattle, it cannot include a box.

The maxim is no doubt a sound one, but it is to be applied, with discrimination, to the subject matter, with a view to accomplish the purposes of the act. The purpose of the by-law was, to prohibit the use of a part of the market as a stand for the sale of provisions, with a receptacle capable of holding and displaying such provisions. Cart, wagon and sleigh, are specified, but it is cart, wagon or sleigh, with the horse removed, and used only for the time being as such receptacle. We believe that the species of sleigh commonly used for carrying provisions to market is usuallly called a lumber-box. Now the point of likeness to be regarded is, not the capacity of being moved by a horse, but the capacity of being used to hold and display provisions for sale. A box, therefore, of suitable dimensions to hold and display provisions for sale, is an article ejusdem generis, within the clause of the by-law. The same rule, we think, would apply to a bench, stall, oi table, used for the like purpose.

5. It is contended that the by-law is contrary to common right, m restraint of trade, against public policy, unreasonable and void. But the court are of opinion that the by-law is not open to these objections. The city have, at great expense *259provided these accommodations; and they have a right so to control them, as best to promote the welfare of all the citizens. And we think they are well calculated to promote the public and general benefit, as well of the country as the city, by securing free and convenient stands for actual producers, and those who reside at a distance.

6. The last objection is, that the complaint is defective, in stating that the defendant occupied a stand with a box, which might be a small box, incapable of being so used. This objection is not tenable, unless the court can say that no box of any dimensions can be so used as to occupy a stand; which we certainly cannot say, because a large box may be, and often is so used. If, in fact, it was a small box, as it was suggested, in the argument, that it might be, it was rather matter of evidence, than of averment, that it was a small box, not adapted to the purpose of holding provisions for sale. The court should have been requested to charge that it was insufficient to support the averment in the complaint, or to leave it to the jury, on the evidence, with proper directions.

These views, it is believed, embrace all the points arising as well on the motion in arrest of judgment as on the bill of exceptions. Exceptions overruled.