delivered the opinion of the court:
Plaintiff was appointed a captain in the service of the United States and has been paid as such from the date of his muster-in; he now seeks to recover pay for the period between the date of his commission and the date of the muster into the service, relying upon the Act February 3d, 1887 (24 Stat. L., 377), which amends the first section of the Act June 3, 1884 (23 Stat. L., p. 34).
To establish his case plaintiff must show: First, that at the date from which he was to take rank by the terms of his commission there was a vacancy to which he could be appointed. It appears from the findings that there was such a vacancy. Second, that at the date of his commission he was performing the duties of captain, or, if not, he must show when he began to perform these duties. The duties performed by him during the period in question are enumerated in the findings; they were performed by order of General Ewing, to whom plaintiff had been directed to report, and consisted in organizing and drilling his men, in guarding railway trains, in scouting *160for guerrillas, in picketing and patrolling the town, and in protecting public property; these duties, in our opinion, were substantially the duties of a captain. Third, that the numbers of the command should not be below the number required by existing law and regulations, and they were not. Judgment for plaintiff in the sum of $200.74.