
    EDWARD D. LEGG v. THE UNITED STATES.
    [No. 24656.
    Decided December 20, 1904.]
    
      On the Proofs.
    
    While a regiment at the close oí the Spanish war is proceeding to its place of enrollment, there to receive a furlough prior to muster out, an officer, being sick, is ordered to proceed to his home, where he remains sick and unfit for duty during the whole of the furlough period.
    1.The status of a soldier at the time when the furlough period began governs in such eases.
    II.If the soldier was then sick and incapacitated for duty, whether with the regiment or in a hospital or at his home, he can not be considered as having received the furlough.
    III.If the soldier became sick after the furlough period began and after he had received his furlough, he can not be considered as then on duty and is not entitled to extra pay.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Edward D. Legg, was enrolled on April 26, 1898, in the military service at Coldwater, Mich., and mustered into the United States service as first lieutenant in Company A, Thirty-second Regiment .of Michigan Infantry Volunteers, on May 12, 1898, and mustered out with his company as a first lieutenant on November, 5, 1898, at Cold-water, Mich.
    II. The.following special orders were published, in obedience to General Orders, No. 130, Adjutant-General’s Office, current series, 1898, relating to the muster out of the Thirty-second Michigan Infantry Volunteers:
    “ Special ) Headquaetees Fourth Army Coeps,
    “ OkdeRS, v Gamp Wheeler, Huntsville, Ala.,
    
    “ No. 108. ) September 15, 1898.
    
    “ 1. The mustering officer of the corps having reported to these headquarters that the preparations for the muster out of the Thirty-second Michigan Volunteer Infantry are now complete, this regiment will proceed to-morrow, the 16th instant, in accordance with telegraphic instructions of the Secretary of War of September 2, 1898, to Camp Eton, Island Lake, Michigan, with a view to furlough and muster out under the provisions General Orders, Nos. 124 and 130, current series, Adjutant-General’s Office.
    “ The Quartermaster’s Department will furnish the necessary transportation, and the Subsistence Department two days’ travel rations, and funds for liquid coffee.
    “ By command of Major-General Coppinger:
    “ Clarence R. Edavards,
    “ Assistant Adjutant-General.”
    III. While the said regiment was en route from Huntsville, Ala., to Island Lake, Michigan, in pursuance of the order contained in finding ii, it arrived at Toledo, Ohio, on the 19th of September, 1898. The claimant, who Avas then sick, AA'as directed by his captain and regimental surgeon to proceed to his home on account of his oavii sickness, and was given charge of a sick soldier. He went home and on arrival went to bed sick and remained in this condition unable to do any work until October 24, 1898. This sickness was malarial fever contracted in the line of duty. There being-no military surgeon present, the claimant AATas treated by a civilian physician. After the claimant Avas sent home on account of sickness, to Avit, on the 23d day of September, 1898, his company was granted a furlough of thirty days. Erom this time the claimant performed no military duty, being sick in line of duty and unable to perform military or other work.
    IY. If the claimant is entitled to recover, the judgment should be for the sum of $125.
    
      Mr. William E. Harvey and Mr. William B. King for the claimant. Messrs. George A. and William B. King were on the brief.
    
      Mr. George M. Anderson (with whom Avas Mr. Assistant Attorney-General Pradt) for the defendants.
   Per Curiam :

The status of a soldier at the time when the furlough period began governs in such cases. If the soldier was then sick and incapacitated for duty, whether with the regiment or in a hospital or at his home, he can not be considered as having received a furlough. If he became sick after the furlough period began and after he had received a furlough, the sickness was his misfortune, and he can not be considered as then on duty.

The judgment of the court in this case is that the claimant recover $125.  