Mr. Chief Justice WAITE delivered the opinion of the court.
From the finding of facts sent up with this appeal we are clearly of the opinion that Dr. Taylor did not 'continue in service until the end of the war,' within the meaning of the resolutions of congress of October 21, 1780, and of March 22, 1783, under which the claim in this case is made. When he accepted his appointment in the regiment of guards, January 9, 1779, he ceased to be a supernumerary surgeon's mate, and became an active officer in the [154 U.S. 648, 649] new regiment. Consequently, when that regiment was discharged because its term of enlistment had expired, he was out of service. When the new regiment was raised, the governor and council of Virginia were authorized by congress to appoint its officers out of those in the Virginia line who were then supernumerary. Although it is said, in one of the additional findings, that Dr. Taylor was 'assigned to active duty,' this is to be construed in connection with the resolution to which reference is made; and, that being done, it is apparent there was no intention by that language to modify the previous finding that 'he was appointed surgeon's mate of the regiment of guards authorized by the resolution of January 9, 1779, of the continental congress.' By the resolution, congress permitted the supernumerary officers in the line to accept appointments in the new regiment. Such an acceptance took them out of their former position in the line, and put them into the new organization.
The judgment of the court of claims is affirmed.
P. E. Dye, for appellant.
The Attorney General, the Solicitor General, and Asst. Atty. Gen. Smith, for the United States.