EDITORIAL DEPARTMENT

by the state and the theory of state ownership has been confirmed by later constitutions and in Massachusetts similar early grants of shore placed a contemporaneous construction upon the grants of upland which could not be ig nored when the Massachusetts courts were called upon to determine what was the law of the state. SURETYSHIP (Notice of Acceptance) AN interesting criticism of the doctrine which requires "Notice of Acceptance in Con tracts of Guaranty," by W. P. Rogers, appears in the Columbia Law Review for March (V. v, p. 214). Since most unilateral contracts are com pleted by the doing of the act without further ceremony he insists that there is no sufficient reason for departing from a well-established rule sustained by reason and logic by requir ing notice of acceptance. "The cases which have departed from the common law rule of contracts have appar ently established at least two distinct rules on this subject of notice of acceptance: (i) that all guaranties for future advancements or cred its require notice of acceptance within a reas onable time thereafter: (2) when the guaranty is collateral, that is, when the amount of the debt is uncertain and variable, and the knowl edge concerning the amount and time of pay ment will not or may not come promptly to the guarantor, the creditor is bound to give him notice of his acceptance within a reason able time after doing that which amounts to an acceptance. There is a third group of cases, representing a very small minority of the states, wherein it is insistently claimed that the common law rule of contracts, in ref erence to notice, of acceptance, shoxtld be ap plied to contracts of guaranty. The judges who have written these opinions criticise the courts for the departure they have admittedly made in this branch of the law, and insist with apparent justification that it is unwarranted. They deny that a proposition to stand as guarantor always carries with it an implied condition that notice of acceptance will be given the guarantor." TORTS (Damage, Mental or Nervous) PROFESSOR FRANCIS M. BURDICK, in the March Columbia Law Review (V. v, p. 179),

249

summarizes the cases relating to "Tort Lia bility for Mental Disturbance and Nervous Shock," as follows: "Where the consequences of the defendant's wrong-doing are limited to the mental dis turbance of the plaintiff, and the wrong-doing is not actionable in behalf of the plaintiff, apart from such consequences, any harm sus tained by the plaintiff is deemed damnum abscjue injuria. Thus far there is entire un animity of decision. When, however, worry or fright, occasioned by defendant's wrongful conduct, causes physical derangement, differ ences of opinion immediately develop, and it becomes impossible to reconcile the var ious judicial views of the wrong-doer's lia bility. "Courts which deny all remedy for fright, or like disturbances of the mind and nerves, assign one or both of the following reasons for their holding: First, that physical suffering, sickness or permanent harm is not the probable or natural consequence of fright or nervous shock, in the case of a person of ordinary physical and mental vigor. Hence, plaintiff's injury is declared to be, as a matter of law, not the proximate, but a remote result of de fendant's wrong-doing. Second, that dam ages sustained by fright or nervous shock must be refused, because of the impractica bility of satisfactorily administering any other rule. "That serious physical disorder is the every day consequence of fright or nervous shock is a fact, not only established by modern science, but one which has long been accepted by the ordinary man. It would seem, therefore, to fall within the category of natural and prob able consequences. The second reason as signed for denying recovery in the cases now under consideration does not appear to be entirely satisfactory, even to the courts which continue to apply it. "Moreover, all courts agree that when the defendant's misconduct causes a physical in jury to plaintiff, however slight, or, without physical harm, wrongfully invades his right of personal security or liberty or reputation, he is entitled to have the jury estimate and assess the damages which he has sustained by reason of injured feelings."