delivered the opinion of the court:
The claimant was a sergeant in Company E, Third Regiment of Missouri State Militia Cavalry Volunteers, when, on the 9th of August, 1864, the captain of his company having died, the first lieutenant was appointed captain, and the claimant was appointed and commissioned by the governor of Missouri as first lieutenant, to rank from July 8, 1864.
Thereafter he acted as and performed the duties of first lieu- ■ tenant until April 14,1865, when he was mustered out, although he was never mustered in as first lieutenant. That he was not so mustered in, however, does not appear to have been his fault. He was paid only as a sergeant, and did not receive any extra pay on being mustered out.
He now claims the difference between the pay of a sergeant and that of a first lieutenant while he was performing the duties of the latter office, and also three months’ extra day due, as he alleges, upon his muster-out.
The claims are founded upon the following legislation of Congress: Act of July 22, 1861, ch. 9, sec. 4 (12 Stat. L., 269); act of March 3, 1865, ch. 81, sec. 4 (13 Stat. L., 497); act of July 13, 1866, ch. 181 (14 Stat. L., 94); joint resolution of July 26, 1866, No. 87 (14 Stat. L , 368); joint resolution of July 11, 1870, No. 102 (16 Stat. L., 385); act of June 3, 1884, ch. 63 (23 Stat. L., 34).
Whether or not the claimant might have had a good cause of action at some time previous to the passage of the act of 1884 is not material in the present case, because it accrued, if at all, more than six years before the filing of his petition, and is barred by the statute of limitation, Revised Statutes, section 1069.
The claimant’s case must stand or fall by the provisions of *289the act of 1884 (23 Stat. L., 34), the parts of which material to the issue are as follows :
“Be it enacted, That the joint resolution approved July eleventh, eighteen hundred and seventy, entitled ‘ Joint resolution amendatory of joint resolution for the relief of certain ■officers of the Army,’ approved July twenty-six, eighteen hundred and sixty-six, is hereby so amended and shall be so construed that in all cases arising under the same any person who was duly appointed and commissioned, whether his commission was actually received by him or not, shall be considered as commissioned to the grade therein named from the date when his commission was actually issued by competent authority, and shall be entitled to all pay and emoluments as if actually mustered at such date.
"Provided, That at the date of his commission he was actually performing the duties of the grade to which he was so commissioned, or, if not so performing such duties, then from such time after the date of his commission as he may have actually entered upon such duties. * * *
“And provided further, That this act and resolution hereby amended shall be construed to apply only in those cases where the commission bears date prior to June twentieth, eighteen hundred and sixty-three, or after that date when their commands were not below the minimum number required by existing laws and regulations.” * * *
The question is whether or not the claimant brings his case within the terms of this act. The second proviso declares that the act itself and the resolution thereby amended shall apply ■only in those cases where the commission bears date prior to ■June 20, 1863, or after that date when their commands were not below the minimum number required by existing laws and regulations.
By finding i it appears that the claimant’s commission bore date August 9, 1864, more than a year subsequent to the time mentioned in the act, and by finding iv it is shown that during the time for which he claims pay and bounty both the regiment and company to which he belonged were below the minimum then required by existing laws.
These facts are conclusive against the claimant’s demand .for any benefits under that act, and make it unnecessáry to consider the questions argued at the trial in relation to the status of the Missouri State Militia and the validity of the claimant’s appointment as first lieutenant.
All the officers of his regiment and company, even although *290rightly atul legally commissioned, whose commissions did not antedate June 20, 1863, even if the Missouri State Militia, formed part of the United States Volunteers contemplated by the acts of Congress referred to, are excluded from the benefits, of the act by the second proviso.
The petition is dismissed.