The foundation of the defendant's argument is the decision in Allgeyer v. Louisiana, 165 U. S. 578. That was a proceeding by the state to recover a penalty for violating a state law intended to prevent dealing with any marine insurance company that had not complied with the law. The defendants were the parties insured. The policy, an open one, was issued outside the state, and the only act done within the state was the mailing of a letter describing certain cotton to which the defendants desired the policy to attach. But the court intimate somewhat broadly that a state legislature cannot make it unlawful for a man to make a contract of insurance outside the state, although he resides and is present in the state at the time when the contract is made. It now is contended that, if this is so, it cannot be unlawful for another man to obey a request to get such insurance, if made by the one who wants it, and that the contract in the present case was made outside the commonwealth, on principles which cannot be affected by the Statutes of 1894, chapter 522, section 3. It might be argued further that at the least this was not unlawful insurance, and so that this particular indictment fails, whether the defendant had done a punishable act or not.

We bow to the decision, and even to the intimations of the case cited, without criticism. But that case expressly leaves intact the settled power of the state to impose such conditions as it pleases upon the doing of any business by foreign insurance companies within its borders. Although the reasoning of many of the cases turns on the fact that such companies are corporations, we apprehend that the power is not dependent upon that fact, but is an unsurrendered portion of the state's general right to legislate: See Allgeyer v. Louisiana, 165 U. S. 591; Leavenworth v. Booth, 15 Kan. 627, 634. One main object in imposing such conditions in this commonwealth is to secure people against fraudulent 156 or worthless contracts, and, in case of litigation, to save them from having to go abroad: See Lamb v. Lamb, 6 Biss. 420, 422. We assume, until it is decided otherwise, that the power to enforce these objects will be regarded as too important and substantial to be defeated by a device, even though the device, apart from its purpose, would only embody a common-law right. We are of opinion, therefore, that notwithstanding the right of McKie, if so minded, to apply from Boston to the London Lloyds for insurance, the legislature has power to prohibit the agents of the Lloyds, as well as the Lloyds themselves, from soliciting business in Bos

ton, and to make that prohibition effectual by providing that it shall not be escaped by an agreement making the solicitors the agents of the insured in the transaction. In other words, while the legislature cannot impair the freedom of McKie to elect with whom he will contract, it can prevent the foreign insurers from sheltering themselves under his freedom in order to solicit contracts which otherwise he would not have thought of making. It may prohibit not only agents of the insurers, but also brokers, from soliciting or intermeddling in such insurance, and for the same reasons. What we have said. goes very little, if any, further than what is laid down in similar terms in Hooper v. California, 155 U. S. 648, 657, 658, and the authority of that case is saved in terms in Allgeyer v. Louisiana, 165 U. S. 578, and is recognized again in Orient Ins. Co. v. Daggs, 172 U. S. 557, 566. See, further, Pierce v. People, 106 Ill. 11, 46 Am. Rep. 683.

What the legislature can do it has done by the Statutes of 1894, chapter 522. By section 3, "it shall be unlawful ... for any person as insurance agent or insurance broker to make, negotiate, solicit, or in any manner aid in the transaction of" insurance upon any property or interests in this commonwealth or with any resident thereof, except as authorized by the act. By section 98, "any person. . . . who shall act in any manner in the negotiation or transaction of unlawful insurance with a foreign insurance company not admitted to do business in this commonwealth, or who as principal or agent shall violate any provision of this act in regard to the negotiation or effecting of contracts of insurance," is subjected to a penalty.

Whether the description of the insurance in the indictment as unlawful be rejected as surplusage, or whether the insurance be 157 held to be unlawful within the meaning of the act and indictment because transacted through a broker acting unlawfully, an offense under the statute is set forth and the defendant properly was convicted. It is unnecessary to consider whether the same result could be reached in another way. Possibly, for the reasons given above, it would be within the power of the legislature to enact that the insurance broker should be regarded as the agent of the insurers, whatever the agreement of the parties, and in that way reach the result that any contract made through him when he and the insured were here would be made in this state and thus would be subject to our laws. Possibly it might be argued that such was the effect

of our statute, although, if so, it fails to state it as clearly as could be wished: See Stats. 1894, c. 522, secs. 3, end, 87, 90. Exceptions overruled.

STATE HAS

FOREIGN INSURANCE COMPANIES. — A POWER wholly to exclude foreign insurance companies from doing business within it: Daggs v. Orient Ins. Co., 136 Mo. 382, 58 Am. St. Rep. 638. It is competent for the legislature to provide a penalty against any agent of a foreign insurance company who shall act without authority of the state, although the contract is made out of the state, and provides that he shall be deemed the agent of the insured: Pierce v. People, 106 Ill. 11, 46 Am. Rep. 683.

WETHERBEE v. PARTRIDGE.

[175 Massachusetts, 185.]

BLASTING LIABILITY FOR INDEPENDENT CONTRACTOR.-A defendant is liable for an injury to the plaintiff's property by the blasting of rocks upon the adjoining land of the defendant, and it is no defense that the work was in the hands of an independent contractor, where blasting was contemplated by the contract, and its performance was certain to cause the injury complained of unless it was guarded against.

J. P. Leahy and J. C. Pelletier, for the defendant.

G. H. Mellen, for the plaintiffs.

186 HOLMES, C. J. This is an action of tort to recover damages for an injury to the plaintiffs' property by the blasting of rocks upon adjoining land of the defendant. The defense relied on is that the work was in the hands of an independent contractor, and the question raised by the exceptions is whether that fact entitled the defendant to have a verdict directed in his favor. It may be assumed that the contract contemplated that blasting would be done, and the place where it was done was within three or four feet of the line between the plaintiffs and the defendant, and about eight or nine feet from the plaintiffs' house. Under such circumstances, it was plain that the performance of the contract would bring to pass the wrongful consequences of which the plaintiffs complain, unless it was guarded against, and if the principle recognized in Woodman v. Metropolitan R. R. Co., 149 Mass. 335, 340, 14 Am. St. Rep. 427, applies, the defendant was bound to see that due care was used to prevent harm.

We are of opinion that the principle does apply. In some cases of blasting under an independent contract, we might go no further than to hold that there was a question for the jury whether the danger was so great as to make the defendant liable. But in the case at bar the danger was so obvious that only one conclusion was possible, and the defendant did not ask to go to the jury upon this point. What he wanted was to have a verdict directed in his favor. Cases sustaining the conclusion to which we have come are Joliet v. Harwood, 86 Ill. 110, 29 Am. Rep. 17; James v. McMinimy, 93 Ky. 471, 40 Am. St. Rep. 200; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495. There are some other cases in which the subject has been approached solely from the point of view of master and servant, although not without dissent. These decisions we are 187 not prepared to follow: McCafferty v. Spuyten Duyvil etc. R. R. Co., 61 N. Y. 178, 185, 19 Am. Rep. 267; Tibbetts v. Knox etc. R. R. Co., 62 Me. 437; Edmundson v. Pittsburgh etc. R. R. Co., 111 Pa. St. 316. Compare Stone v. Cheshire R. R. Co., 19 N. H. 427, 51 Am. Dec. 192; Wright v. Holbrook, 52 N. H. 120, 126, 13 Am. Rep. 12.

Exceptions overruled.

BLASTING-LIABILITY FOR-INDEPENDENT CONTRACTOR.-In the event of injury to a third person by negligent blasting by a contractor on the premises of the contractee, the contractee is liable: See the monographic note to Covington etc. Bridge Co. v. Steinbrock, 76 Am. St. Rep. 421. Compare Berg v. Parsons, 156 N. Y. 109, 66 Am. St. Rep. 542.

O'BRIEN v. MURPHY.

[175 Massachusetts, 253.]

OFFICIAL BONDS CONTINUING LIABILITY. - Where there is a recital in a bond specifying the time during which the prescribed duty is to be performed by the principal, and the words of the condition are general and indefinite as to the time for which the surety is to be liable, such general words will be construed as limited by the recital, and the surety will be held liable only for the time therein specified.

OFFICIAL BONDS-CONSTRUCTION-CONTINUING LIABILITY.-The bond of a treasurer, whose office is held by annual election, the bond being given while he was holding office under his first election, does not become a continuing bond by inserting a provision that such treasurer shall perform his duties during the term for which he has been elected, "and during such further time as he

may continue to hold said office and until he shall deliver all the property which he may receive as such treasurer to his successor in office," such phrase merely applies to such further time beyond the term of one year as the principal might hold office by virtue of his first election, and it was not intended to cover the time under which he might hold office under any subsequent election.

H. I. Bartlett, for the plaintiffs.

A. W. Reddy and G. W. Cate, for the defendants.

254 HAMMOND, J. In the superior court the ruling was that the bond was not a continuing bond, and the demurrer was sustained on that ground; and the only question argued before us is whether this ruling was correct. In view of the conclusion to which we have come, we have not found it necessary to consider the other grounds of the demurrer.

The general rule is, that where there is a recital in the bond specifying the time during which the prescribed duty is to be performed by the principal, and the words of the condition are general and indefinite as to the time for which the surety is to be liable, such general words will be construed as limited by the recital, and the surety will be held liable only for the time therein specified. It is fair to presume that the parties had in contemplation only a liability for the time specified in the recital: Brandt on Suretyship, sec. 166; Arlington v. Merricke, 2 Saund. 403; Liverpool Waterworks v. Atkinson, 6 East, 507. In the latter case, the bond, after reciting that the defendant had agreed with the plaintiff to collect its revenues "from time to time for twelve months," contained the condition for the faithful performance of the principal "from time to time and at all times thereafter during the continuance of such his employment," and that "so long as he should continue and be employed by the company from time to time observe and perform the orders of their committee as far as the same should concern his said employment." 255 The general language was held to apply only to the twelve months.

The same rule is applied where the office or employment is by law or usage limited to a certain time, even if that fact be not recited in the bond: Bigelow v. Bridge, 8 Mass. 275; Dedham Bank v. Chickering, 3 Pick. 335; Amherst Bank v. Root, 2 Met. 522; Chelmsford Co. v. Demarest, 7 Gray, 1. In this last case the sureties on the bond of the treasurer of a manufacturing corporation, who under the statute was to be "chosen annually" and hold his office "until another is chosen and qualified in his stead," were bound only for the year for which he was