contractual situations, and not to a tort case, such as this. By making this argument, Butt was seeking to use recent English authorities - and the emerging rules on how to draw the line between contract and tort - to rebut Crowder’s attempt to formulate a principle to cover the case. The court found for the defendant. Giving judgment, Jervis CJ remarked that there was very little to be found in the books on this subject.60The only treatise he cited in the judgment was J.W. Smith’s compendium on mercantile law: a practitioner’s manual, rather than a work of high theory.61 Rather than drawing on theory, Jervis sought to answer the central question by looking from a commercial point of view at the nature of the master’s position. He noted that both the custom and usage of trade, and common sense, showed that the master’s authority to give a bill of lading only commenced when goods were on board.As the judge put it, “[t]he very nature of a bill of lading shews that it ought not to be signed until goods are on board; for it begins by describing them as shipped.”The general usage gave notice to all parties who took the bill that the master’s authority was limited.62 Having taken this view, he did not need to address Crowder’s attempt to distinguish between real and apparent authority; or to explore whether there could be liability in tort for fraud.The rule established in the case soon entered the textbooks (including later editions of Story as well as Bowstead’s late nineteenth century digest of agency), and continues to be cited in current textbooks.63The case shows us how pragmatic reasoning was. If treatise writers gave counsel a starting point for their argument, they were absent at the conclusion. Instead, legal points were settled through the forum of courtroom discussions, where treatise writers were mentioned and cited, but the case developed by arguments from earlier case law, analogy and convenience. This kind of casuistic legal reasoning shaped the development of doctrine in general, both contract and tort. It was forensic discussion, generated by new problems which came before the courts, which gave much shape to the law of contract in the nineteenth century. If it is re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 152 59 Wilde v. Gibson (1848) 1 hlc 605. 60 Grant v. Norway (1851) 10 cb at 689; cf The Jurist vol. 15 (1852), p. 297. 61 J.W. Smith, A Compendium of Mercantile Law4th ed (ed G.M. Dowdeswell, London 1848). 62 Grant v. Norway (1851) 10 cb 665 at 686-9. 63 See F.M.B. Reynolds, Bowstead and Reynolds on Agency 18th ed (London, 2006), p. 369.
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