delivered the opinion of the court:
The claimant was commissioned captain of Company M, Tenth Regiment Illinois Cavalry, on the 3d day of May, 1864, to rank from the 26th of April, A. D. 1864. At the time of his commission he was at Springfield, Ill., and his regiment was at Little Rock, Ark. In a short time he started to join his regiment, but was prevented from so doing by ill health. He returned to Springfield, and from the date of his return until the 15th of October, 1864, he remained at Camp. Butler, acting as recorder of a board of inspection for recruits. He was never mustered into the service of the United States under his commission, because the mustering regulations, in force at that time, required him to join his command before being mustered.
Upon the above state of facts he files his petition claiming *16pay as captain from the said 3d day of May to the 18th of October, 1861, under an act of Congress approved June 3,1881, entitled “An act to provide for the muster and pay of certain officers and enlisted men of the volunteer forces.”
It is claimed by the petitioner that his case comes within the second proviso of said act; and that he is entitled to the benefits of the same, because (notwithstanding he was never mustered and never did service'with his company, from the date of his commission, on his return to Illinois) he was performing the duties of the grade to which he was commissioned.
The record shows that his company was not below the minimum number, and it is insisted that fact will not avail him, because bis company was not his “commaud,” in the sense of the law, for the reason he never was mustered, or joined it in fact, after the date of his commission.
As the record fails to show that during the time covered by his commission he performed the duties of the grade to which he was commissioned, he fails to bring his case within the act' of the 3d of June, 1881, and his petition must be dismissed.