PROVISIONAL COURT FOR LOUISIANA. 



773 



The operations of that court had been most 

 beneficent, and it was safe to assume that jus- 

 tice and the best interests of the public would 

 be advanced by sustaining its acts as being 

 within its powers, and valid, so far as circum- 

 stances would permit, and the Provisional 

 Court, therefore, always inclined to sustain its 

 jurisdiction, and usually found it easy to do it 

 on general legal principles. Where, for in- 

 stance, a divorce a mensa et tJioro had been ad- 

 judged by that court, on the application of the 

 wife, and more than a year had elapsed with- 

 out a reconciliation of the parties, the law of 

 Louisiana, in such a case, giving the plaintiff, 

 after the expiration of the year a right to a 

 complete divorce a vinculo matrimonii and 

 half of the property acquired during covert- 

 ure ; the Provisional Court was asked to make 

 the final decree and distribute the property 

 between the parties/ The Provisional Court 

 sustained the jurisdiction of the Provost Court, 

 affirmed its decision, and ordered judgment of 

 divorce dissolving the bonds of matrimony, and 

 dividing the property of the marriage, and 

 awarding the custody and support of the chil- 

 dren. De Bare vs. De Bare. 



A sugar planter, named Millandon, of large 

 estate, having two plantations with crops near- 

 ly ready to be gathered, and finding himself at 

 that season of the year destitute of labor by 

 reason of the desertion of his slaves, contracted 

 with a gentleman named Smith, who seemed 

 to have the power to procure labor, to take off 

 his crop and make the sugar; agreeing to pay 

 for the labor furnished and to support the 

 laborers, and bear all expenses, and give to 

 Smith one half of the crop or proceeds. 

 The contractor agreed to furnish the labor and 

 superintend the work. The business went on 

 very well for a while, but the laborers be- 

 coming demoralized, and the contractor seem- 

 ing to be unable to fulfil his contract by con- 

 trolling the present force or procuring a new 

 one, the planter wished to terminate the con- 

 tract. Mr. Millandon went before General 

 Butler at a time fixed and presented his case. 

 The General made the following order : 



Mr. Smith having failed to present himself when 

 called before me upon the subject of this contract, after 

 hearing, it is ordered that this contract be set aside for 

 working the negroes upon Millandon's plantation by 

 said Smith, and that the plantation ana laborers be 

 turned over to Mr. Weed, the Government Agent, to 

 be worked for the benefit of the claimant. 



B. F. BUTLER, Maj.-Gen. Commd'g. 



A tenth or a twentieth part of the sugar 

 had been made at this time, and the value of 

 the share the contractor would have received 

 if all had gone on well would have been very 

 large. Smith brought an action against Mil- 

 landon to recover the value of that share as 

 the damage he had sustained by the refusal of 

 Millandon to allow him to perform and take 

 the benefit of his contract. What were the 

 rights of Smith against Millandon on these 

 facts ? 



After the capture of New Orleans, wood be- 

 came very scarce, and the New Orleans and 

 Carrolton Railroad Company, seeing their stock 

 running low and all further supplies suspended, 

 and that the owners of land near the city, 

 from hostility to the Government or some 

 other cause declined to furnish it or to allow 

 others to cut it and supply the market, ap- 

 plied to Gen. Butler for permission to cut wood 

 for their use in the Swamp Lands near the 

 city and Lake Pontchartram. He gave them 

 permission in the following terms : 



NKW ORLEANS, November 6lh, 1863. 

 To Maj.- Gen. Butler, commanding Gulf Department : 

 SIR : The Government and regular trains of the 

 N. 0. & C. R. R. Co. are now consuming, upon an 

 average, ten cords of wood as a motive power per diem, 

 and we are now out of fuel, with the exception of a 

 few cords of pine wood that we use for kindling, the 

 swamp timber in the lake swamp being our only re- 

 source for a supply, you will confer a favor upon the 

 undersigned by authorizing Mr. A. Wire to cut wood 

 in said swamp for the use of the New Orleans and 

 Carrollton Railroad Company. 



G. CUNIE DUNCAN, President 



On the back of this note was indorsed the 

 following characteristic reply : 



Permitted. 



B. F. BUTLER, 



Maj.-Gen. Commanding. 



The Railroad Company then made a bargain 

 with Wire to receive from him and pay for 

 wood he should deliver them to a certain 

 amount at a certain rate. Wire and his men 

 went into the Lake Swamp and cut wood to a 

 large amount and delivered it to the Railroad 

 Company under the contract and received pay- 

 ment pursuant to the contract. After the or- 

 ganization of this Court suit was brought 

 by the owners of the land against Wire and 

 the men employed by him and also against the 

 Railroad Company to recover damages for the 

 wood cut and removed from their land. The 

 questions were : 



First. Whether the order of General But- 

 ler, giving permission to the Railroad Company 

 was valid and effectual in itself as an act with- 

 in the scope of his powers and would afford 

 protection to the defendants. 



Second. If it was valid and effectual as a pro- 

 tection, to what extent was it so ? . 1st, was it 

 merely authority to enter the lands and take 

 the wood, paying or remaining liable to pay 

 a reasonable price for the same, and in that 

 way a' protection against consequences which 

 would have followed from the tortiousness of 

 the act, leaving the party liable for the value 

 of the thing taken or despoiled? or 2d, was 

 it authority to take the wood and dispose 

 of it, free of all pecuniary responsibility on the 

 part of the person acting under it, either for the 

 wrongful act, or for the value of the thing 

 taken? 



A Mr. Emerson, during the rule of the Con- 

 federate authority, held a mortgage on the 

 property of one Guillontet. He proceeded to 

 foreclose it, and had obtained an order for the 



