#### William A. Barnes *v.*The United States.

*On the Proofs.*

*The*claimant, *as chaplain of the 5tk New York heavy*artillery, *is duly mustered into the service of the United States. By special order he is dismissed. Sub~*sequently, *so much of the order as discharges him is revoked. During the*inter*217
      *val between the order of dismissal and its revocation he continues to perform all the duties of his office. Pay during ike time the order was in existence is refused by the War Department.*

By law and the usage of the government, where an officer of the army is dismissed without cause, and afterwards the order of dismissal is revoked and he restored to his command, he having continued to perform his duty in the interval, will be entitled to his pay and allowance from the date of his dismissal to the date of its revocation. The rule in *Smith’s Case*(2 C. Cls. R., 206,) and in *Winter’s Case,*(3 C. Cls. R., 136,) reaffirmed.

*Messrs. Ghipman é*Sosmer, for tbe claimant:

I. Tbis case is before tbe court by original petition, and is founded upon an api)ointment in tbe army, witb grade of chaplain, giren tbe petitioner.

II. Petitioner was appointed chaplain of tbe 5th New Xorlc rolnnteer artillery, and was enrolled as such on tbe 3d day of January, 1862, and was commissioned March 7, 1862, and mustered into service about tbe same time. He served continuously, until finally discharged on tbe 8th day of March, 1865.

During tbis period be was served witb an order of discharge,dated September 10,1862, which continued until December 4, 1862, when tbe order was revoked. He did not cease from performing duty, however, during tbis time, but was faithful in its discharge, and at tbe same time urged upon tbe government tbe injustice of bis summary muster out, and finally succeeded in procuring an order of revocal. He received no pay for bis service from tbe 15th day of September, 1862, to tbe 4th day of December, 1862, and for tbis be brings suit.

*Mr. Alexander*Johnston, (witb whom was tbe *Assistant Attorney General,)*for tbe defendants.

Casey, Cb. J.,

delivered tbe opinion of tbe court.

Tbe claimant was cbajdain of tbe 5th New York heavy artillery, duly mustered into tbe military service of tbe United States on January 3,1862. On tbe 10th September, 1862, by Special Orders No. 232, be was discharged tbe service of tbe United States. On tbe 4th December following, so much of said order u as discharges Chaplain W. A. Barnes, 5th New *218York artillery, from, tbe service of tbe United States, is hereby revoked, and be is this date restored to bis command.” During tbe interval between tbe order of dismissal and its revocation Mr. Barnes continued to discharge all tbe duties of tbe office. Tbe War Department refused to allow him pay for tbe time tbe order was in existence.

Tbe case cannot be distinguished, either in tbe main facts or principle, from tbe case of Captain Thornton Smith, (2 0. 01s. R., 206,) or that of Captain Gilbert E. Winters, (3 C. Cls. R., 136.) In both those cases it is held that by law and tbe usage of tbe government an officer so situated is entitled to bis pay and allowance. We could add nothing which would make those rulings more clear or pointed.

We render a judgment in favor of tbe claimant for $311 32.