
    *Slaughter’s Adm’r v. The Commonwealth.
    January Term, 1846,
    Richmond.
    (Absent Broom, J.)
    Revolutionary Officers — Half Pay — Statute.—Officers of the Virginia line on continental establishment, who became supernumeraries before the passage of the act of May 1779, ch. 6, are not entitled to half pay for life under that act.
    Dr. Augustine Slaughter was a surgeon in the army of the revolution, in the 7th regiment of Virginia on continental establishment, from the 1st of April 1776 to the 20th of February 1779, when the regiment to which he belonged was reduced; and he then became a supernumerary, and did not again enter into service in the continental line; nor was he required to do so: though he was repeatedly required, and did act as a surgeon to the militia of the State, when they were ordered on duty.
    In November 1843, Philip E. Thompson, the administrator de bonis non with the will annexed of Dr. Slaughter, presented a claim for his half pay for life, which was rejected by the auditor; and Thompson then filed his petition for an appeal from the auditor’s decision to the Judge of the Circuit Superior Court of Law and Chancery for the county of Henrico, which was allowed ; and the cause coming on to be heard in that Court, the decision of the auditor was affirmed. From the judgment of the Circuit Court. Thompson obtained an appeal to this Court.
    The cause was elaborately argued in this Court by Patton, and Grattan, for the appellant, and the Attorney General, for the Commonwealth.
    
      
      He was related to the appellant.
    
    
      
      Revolutionary Officers — Half Pay — Statute.—The principal case is cited in Com. v. Peyton, 2 Gratt. 393, and Com. v. Yates, 9 Gratt. 694.
      It was beld in Com. v. Lilly, 1 Leigh 525, that an officer of the state navy of Virginia during the war of the revolution, who became supernumerary before and so continued till the end of the war, was entitled to half pay for life, under the act of May 1779; but this decision was afterwards reviewed and overruled by three judges against two in Tatum v. Com., 9 Leigh 56.
    
   By the Court.

The Court is of opinion, upon the authority of Tatum’s Case, 9 Leigh 56, that officers of *the Virginia line on continental establishment who became supernumerary before the passing of the act of May 1779, ch. 6, were not entitled to half pay for life under said act; and that there is no error in the judgment of the Court below affirming the decision of the auditor rejecting the claim of the appellant. The same is therefore affirmed.

STANARD, J.

I think Lilly’s Case, ! Leigh 525, was correctly decided; and it is difficult to distinguish in the construction of the statute, between that case and the case before us. But all the new facts brought to the consideration of the Court in Lilly’s Case, were proceedings of the Legislature in relation to the State line. There, too, had been a decision as early as 1795, in Bowman’s Case, against the rights of the officers of the continental line to half pay under the act of May 1779; and no claim was set up by these officers from that time until Tatum’s Case. This indicates some occult facts, distinguishing the rights of the two classes of officers. And after the great lapse of time, and two decisions of this Court, as it is known that Judge Brooke, who is prevented sitting in this case by his connection with the appellant, still entertains the opinion formerly expressed by him; and two of the Judges sitting in this case are for affirming the judgment of the Court below; I therefore -unite in that affirmance. And as this case has been fully argued, I shall, hereafter, consider it as settling the law upon the subject.

CABELL, P.,

dissented. He retained the opinion expressed by him in Tatum’s Case; but should, hereafter, hold himself bound by the authority of that case and the case at bar.  