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ON

THE LAW OF TORTS

A

PHILOSOPHIC DISCUSSION OF THE GENERAL

PRINCIPLES UNDERLYING CIVIL

WRONGS EX DELICTO

BY

EDGAR B. KINKEAD

OF THE COLUMBUS (OHIO) BAR
Professor of Law, Ohio State University, Author of “Kinkead's Code

Pleading,” “Court Practice," "Probate Law,” etc.

VOLUME ONĖ

SAN FRANCISCO

BANCROFT-WHITNEY COMPANY

LAW PUBLISHERS AND LAW BOOKSELLERS

96633

Copyright, 1903

BY

EDGAR B. KINKEAD.

SAN FRANCISCO:
THE FILMER BROTHERS ELECTROTYPE COMPANY,

TYPOGRAPHERS AND STEREOTYPERS

PREFACE.

A preface seems to be an essential part of a book, but in some respects it places the writer at a disadvantage, rendering it necessary, as it does, to write of himself and his work, either in the first or third person. Some explanation in this manner, however, is always expected.

These volumes are presented to the legal profession as a Commentary on the Law of Torts. The designation of the work as a "Commentary” would seem justifiable from the course of discussion pursued, in the main, throughout the book, although conscious of popular criticism for the unisuse of such title, and of the responsibility incurred by its adoption.

The true province of legal authorship is to discover what the law is and set it down; and in so doing the writer must not be wedded absolutely to judicial precedent. From the very nature of things, there can be but one rule of law governing any question, and if in our investigations conflict of decision is encountered, it is reasonable to suppose that one line of authority is right, and the other wrong. We entered upon this work with the determination that nothing would be left undone on our part that might enable us to correctly ascertain and set forth the rules of law in respect to the questions presented in the compass of our subject. We have had constantly before us certain tests by which the law can safely be determined, and have measured all judicial precedents by these tests. The more confusion or flict of authority which has been found, the more jus

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