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398 SUFFOLK. 
Inhabitants v. Farrar. of Winthrop 
the of the case so that he could not discharge jurisdiction
Hancock, v. 3 on his oath. See Niles Met. 568. debtor
Exceptions overruled. 
Winthrop Inhabitants of Alonzo Farrar. vs.
brought acting the of selectmen a as a of have a bill in town, If board to health, equity
an restrain the exercise of trade or which have they offensive prohibited, employment
an 26, 52, under c. court to allow amendment sub- Gen. Sts. this have § thereof, by power
stituting inhabitants of the as after the term of officeof the the town selectmen plaintiffs,
has ceased.
acting forbidding the selectmen of a as a board of the exercise town, An order by health,
an an need not be served officer. offensive trade or employment therein, by of
general acting passing of after of as a board a under the selectmen a town, health, order, If
forbidding an c. the exercise of offensive trade or Gen. 26, § 52, employment therein, Sts.
engaged carrying giving who at the in on the notice to those time were without first same,
passage á giving of such order to so and notice of the after person employed, subsequently,
give three allowed 56 for an the of the by § appeal therefrom, and before days expiration
passage praying a to for the of of the petition them, notice to such person presentation
appointing hearing, a a and time and for if a and place they of similar order upon him,
availing right of of preventing him from himself his the intention of appeal do this with
and he is so and from have thereby the order which they already passed, prevented,
enforce the order of the board of right of this court will not loses his thereby appeal,
this an And if have done without intention to mis- in health a they process equity. by
right but he and his counsel have him of his of been actu- lead or to appeal, him, deprive
right he regard in to to from the and has lost his his order, mistaken appeal appeal ally
him the to will be this court in its serious, this and mistake, consequences reason of by
the to enforce order. and will refuse discretion may 
John Belcher and oth- brought equity in by Bill originally
as a board of of Winthrop, of the town ers, acting selectmen
chosen the inhabitants board of health no health, by there being
be the defendant restrained that town, might of said praying
of kerosene the manufacture oil for his'works from operating
therein.
the was en- that defendant it a former At appeared hearing,
oil in on of kerosene and Winthrop, the manufacture in gaged
of a board health selectmen, as the acting of 1862 the 29th May
of the kerosene order, that making a determining general passed
of trade exercise such or the nuisance, and forbidding was a oil

399 1865. NOVEMBER 
v. Inhabitants of Farrar. Winthrop 
order within the said was limits of the town that employment ;
in the that recorded of and ; records the the same town on day
no notice the was a of prior to the but notice defendant, given
of the order was the of served him on 7th June passing upon
1862; and it was had determined that the selectmen authority
to order, said so to without pass defendant, as be on the binding
first for notice, him to stand and the case was ordered giving
a See Allen, 8 325. hearing. admitted, The answer of the other defendant, amongst things,
the on of the business kerosene oil him of carrying making by
within the denied same town; nuisance; that the was a pro-
fessed his the of denied that no- ignorance order; alleged legal
tice thereof had been to denied notice was him; that given any
him to before same; the averred that on given the llth passing
of 1862, June and before the of the allowed three expiration days
56, Gen. Sts. c. 26, for an from of by order, the appeal (one §
the another notice intervening was served days being Sunday,)
of him, which a was upon annexed, him of the copy informing
of a to selectmen, the for presentation the petition praying pas-
of a similar order him, and a time and sage upon appointing
a for the place thereon; that defendant and hearing appeared,
also, the and a was plaintiffs had, hearing long many occupying
and with witnesses that no counsel; allusion was made days,
the to that order; their the by prior whole plaintiffs hearing pro-
was conducted ceeded and as if no such order been had passed,
that then claimed that it was or in but force, nobody operative
on the the defendant continued his of contrary business making
and the with the oil, full of the refining knowledge plaintiffs,
that defendant the believed and that still believes said always
waived, order and notice to him were and alleged superseded
so and were understood all that said after by parties; hearing
:he declined to make order plaintiffs on the and any petition,
to then referred the order which had on the of made 29th they
as been made under 26, Gen. Sts. May having 52, c. and said §
the that defendant was the same the ; that defendant’s violating
then told the counsel if make that would an order plaintiffs they
therefrom, on the and serve it on he him would petition appeal

400 SUFFOLK. 
Winthrop a. Farrar. Inhabitants of 
but on their declined to do so conduct part all of which they ;
was, as the them with defendant acted believes, and devised by
a view to him in his such a as to put availing prevent position
himself of his of an unfair and to take right advantage appeal,
of him, and to cause to be his and injuriously rights property
affected or that he whatsoever; redress without destroyed any
intended to from said order of and would have appeal appealed
the 29th of him of the last order but for the service May, upon
of notice', that the in said order conduct of the plaintiffs issuing
of notice, and and afterwards, in the the hearings upon petition,
was a and of waiver the order of the 29th of supersedure May,
and was intended to be that the them; such and suspension by
of business him be the would of immense by damage, particu-
ars of which stated were in the answer.
Hoar, J., The case came on for a before in hearing January
1865, and, it admitted Belcher and others were no that being
selectmen of that the the defendant contended longer Winthrop,
select- dismissed, bill must be the new board of or prosecuted by
men, as a ruled that the board of health. The bill acting judge
and was in effect in behalf of the town of brought Winthrop,
be to the in form the amended so as make town plain- might
and such amendment was allowed ; tiffs accordingly.
the offered to that the whom The defendant prove person by
not a con- of 29th 1862 was served was of the order notice May
and be; of himself he to stable, as his description appeared by
in constable, if he was a he made the service Bos- hat, alleged
but the ruled that the was out of his ton, which precinct; judge
re- been ordered the board of health and notice, duly having by
defendant, the was served. ceived sufficiently by
contained in his an- then, defendant the The upon allegations
swer, offered to that said order of which he contended prove, May
thereof, notice and 29th, and said were waived superseded by
11th, order, second notice of which was served June and the by
of the in thereto and plaintiffs the conduct respect proceedings
the but the defendant; in to and manufacturing by respect
if as in the an- said stated ruled that proved allegations, judge
of a waiver or said did not constitute or show swer, supersedure

401 1865. NOVEMBER 
Winthrop t>.Farrar. Inhabitants of 
order of it that 29th, thereof,' nor of said notice May appearing
the defendant did trade the not the offensive cease from upon
notice; and he whole court. reserved this for the question
The contended that also, defendant said upon allegations,
the and notice, misled their order and plaintiffs him second by
him and order, caused to their first omit to from thereby appeal
that, at least, a mistake in the defendant led to make regard was
to his in of of the conduct the appeal consequence plaintiffs;
and that court, this as a in court of not interpose equity, should
behalf of the unfair and to aid them to take an plaintiffs, unjust
of the mistake but the omission; and ruled advantage judge
that the said order of 29th, from, was conclu- unappealed May
sive defendant, the and that the was not to defence upon open
the defendant in this that the suit, it admitted defendant being
did not, the three statute the for claim- allowed during days by
his his to but refused ing appeal, stop wholly manufacturing,
the and he reserved this for the n obey order; whole court. question
The court, defendant also contended that this as a of court
not to in intervene aid of the in case, this equity, ought plaintiffs
because the had to their full enforce order with- plaintiffs power
out the of court; intervention this and this was reserved question
for the whole court. The in were had March 1865. arguments
G, Somerby, A. for the plaintiffs.
E. Brooks, D. B. F. Solder for the 1. The defendant. plain- Sf
as a tiffs’ successors board of health be made must parties by
a bill. 2 Ban. Ch. Pr. 1594-95. PI. supplemental Eq. Story
340, n. The town be should not allowed to become plaintiffs. \ The notice 2. was 55, served. Sts. 26, Gen. c. 9. improperly §§
3. The as a the subsequent of operated supersedure proceedings
first order and notice. v. Wells, 10 Ad. & El. 90. Free- Gregg
v. Cooke, man 2 Exch. 663. Williams v. 18 Pick. Cummington,
312. v. Girard, N. Vidal Walrath 18 Y. 461. v. 2 Redfield,
How. The their have 191. 4. conduct shown them- plaintiffs by
to Wyman, not entitled relief. v. 7 Allen, selves equitable Upham
v. Harris, 499. Wend. v. 11 330. Livingston Sturgis Champ-
5 Cr. 97. v. Clark Fin. neys, & 7 & 162. Plowden Myl. Thorpe,
on 2 1 885. 64; Ib. Story Eq. § § 
vol. 26 xi.

402 SUFFOLK. 
v. Winthrop Inhabitants Farrar. of 
1. Bigelow, C. J.* The to bill amendment the was rightly
allowed.
2. The to the notice of the order of the board of defendant
health was served. duly
3. If answer the defendant can the in his allegations prove
inten- health, the of of and conduct the board their concerning
him- tion to him in a to his prevent thereby put position availing
self of his to and that reason thereof lost his he right appeal, by
refuse to order to this court will enforce the appeal, opportunity
of is the board of health a in to The case by process equity.
stand on this the for After facts are point. ascertained hearing
and the is before us be evidence, whole case on the we able shall
to determine whether the are entitled to plaintiffs intelligently
ask of this in for the interference court to equity, peremptorily
from the restrain the defendant of his business. prosecution
decision, After the above voluminous taken, was testimony
case the was which reserved for the determination upon again
court, of the and in whole was November The 1865. argued
facts found are stated in the opinion.
Bomerby,for the plaintiffs.
Brooks, for the Solder defendant. 8f This cause has J. been before Hoah, us twice and already,
and has been heard, now presented fully bill, answer, upon is.
It and was decided the first proofs. upon replication argument
the board of of selectmen of that the order the town of Win-
board of health, as a which the manu- prohibited throp, acting
or other the of kerosene oils within town a facture as nuisance
a health, to the valid and order public was dangerous legal
26, 52, c. and defendant, Gen. Sts. the binding under upon § •notice without to him. previous Allen, 8 passed any although
320.
then set down for bill, The cause was the an- upon hearing
replication and an swer, amendment of the bill was proofs;
for and it was reserved the whole court allowed; the by justice 
* Gray, case, J. did not sit in this at either hearing.

1865. 403 NOVEMBER 
Winthrop v. Inhabitants of Farrar. 
it, who heard of which law upon rulings upon precluded points
the consideration of most of evidence offered the defend- the by
decided, 1. That the amendment After it was ant. argument,
to the to the bill was 2. That the notice de- allowed; rightfully
served; of health was fendant of the order of the board duly
if in his and 3. That the defendant could the prove allegations
health, board of and their the conduct of the answer concerning
to him a to his avail- intention in put position prevent thereby
and that reason thereof he himself of his of appeal, right ing by
refuse to to this court would enforce lost his appeal, opportunity
of of a order the board health in And the process equity. by
stand last the case was ordered to for this hearing upon point.
before a court, full was had of this justice A again hearing
reserved for the whole for court, and the case a final again w.as
of it. disposal
it established the the We do not find evidence that board by
to defendant, had intention mislead the or of health deprive any
of of his to have acted him with right appeal. appear They
in faith, and strict with the compliance good require- regularity,
order of law. The which on the 29th of ments passed they Slay
the 7th of served defendant on the June fol- 1862 was upon duly
has been done it has since been and which lowing, nothing by
therefore, or remains, annulled. It a valid modified, superseded
has and the defence failed the on order, point and upon binding
to a sent new the case was hearing. which
the the bill, been of as a has upon equity But question argued
deserves decree, a which careful consideration. for final stands it
not the former but was at argument, passed It was suggested
it be for the reason that could not court, the fully pre- by upon
until the evidence was heard. understood whole and sented
it is made to that de- now' the the final hearing appear Upon
to in his mistaken to regard right appeal was actually fendant
lost his health, board of and appeal of the by the order from
counsel, His advice be whose upon that mistake. of reason
the same under misapprehension. was relied,
health, board of when that the they think it We apparent
and order, of the for a notice new the defendant petition gave

404 SUFFOLK. 
Inhabitants of v. Farrar. Winthrop 
to a proceeded it, under were in themselves doubt of the hearing
of their of order, first and its the validity de- obligation upon
fendant, from the want of statute notice to him. The previous
under which acted was of a and had nature, they very stringent
not received are construction. The consequences judicial very
serious, the entire destruction of the defendant’s busi- involving
ness. He omitted to he his under- because and counsel appeal,
stood the that and of effect the purpose proceeding upon petition
for a order new was a of the order passed. rescinding already
Under circumstances, these arises the the whether question
of a of can be court in- extraordinary powers equity properly
voked, to enforce the defendant the injunction against by highly
of his and we are all of consequences error; that penal opinion
it is not a case calls which for their exercise.
The that the a defendant’s works were nui- adjudication only
sance to the health was made a public tribunal injurious by
before which he not heard. It does that was not appear any
his, adverse to is concerned. The statute private right, upon-
which of the suit the maintenance Gen. Sts. c. 26 depends,
does not this as a of court, court upon expressly impose equity
the the of the of orders board of health made in duty enforcing
of-that Our pursuance chapter. therefore, in only jurisdiction,
is the the of a court of premises, general jurisdiction in equity
of nuisance. cases
Without, the to therefore, resort other remedies precluding
to the conclusion that we have come does not equity require
should be sustained. It is this bill in its nature not that merely
of but contains of the elements a or remedial, for- penalty many
the disastrous, and however is ; feiture defendant’s the position,
of a mistake. result in part 
prejudice. dismissed, Bill without