
    *Commonwealth v. Yates’ Adm’r.
    January Term, 1853,
    Richmond.
    (Absent Lee, J.)
    1. Revolution Officer — Claim for Half Pay — Failure-Effect. — A claim for half pay for life as surgeon’s mate to one of the regiments of the Virginia continental establishment during the revolutionary war, rejected; there not being satisfactory proof that he served to the end of the war.
    2. Same — Same—Statute—Effect.—An officer becoming a supernumerary after the passage of the act of 1778, stands on the same footing as .to his claim for commutation or half pay for life, as one becoming a supernumerary before the passage of that act.
    This was an application by Daniel Ward, administrator de bonis non with the will annexed of Dr. George Yates deceased, in the alternative, either for commutation of five years’ full pay, or of half pay for life, for the services of said Yates as surgeon’s mate in the Virginia continental establishment during the revolutionary war. The auditor rejected the claim; but upon appeal to the Circuit court of Henrico, that court held that he was entitled to half pay for life, and directed the auditor to deliver to the administrator a warrant on the treasury of the commonwealth for the said half pay from the 22d of April 1783 until the death of Yates, which occurred in March 1788. From this judgment the attorney general applied to this court for a supersedeas, which was allowed.
    This court did not consider that the evidence showed satisfactorily that Dr. Yates had served until the end of the war, though it showed that he served to the end of the year 1782.
    The Attorney General, for the appellant.
    John M. Patton, Jr., for the appellee.
   *DANIEL, J.,

delivered the opinion of the court. The court is of the opinion that the testimony in the cause is too vague and indefinite to establish the fact that George Yates, the testator of the appellee, served to the end of the war, and therefore that the claim for pay, so far as it rested on such pretensions, was properly rejected by the auditor. The court is also further of opinion that this effort to vindicate the claim on the score of the said Yates being a supernumerary, is met by the decisions of this court in the cases of Tatam’s ex’or v. The Commonwealth, 9 Leigh 56; Slaughter’s adm’r v. The Commonwealth, 2 Gratt. 391; and The Commonwealth v. Peyton’s adm’r, Id. 393.

The court is therefore of opinion that the order and judgment of the Circuit court of the 18th of June 1849 is erroneous, and ought to be reversed, and that the decision of the auditor rejecting the claim should be affirmed.

Judgment reversed.  