The opinion of the court was delivered, by
Agnew, J.These writs of error present precisely the same question. They will therefore be considered together. In several cases decided at this term, we have held that the general bounty laws of 1864 confer an authority, but impose no duty upon the several townships to pay bounties. Each district is left to decide for itself, whether it will offer bounties to volunteers to escape the draft. Without an offer on part of the school board, no presumption arises that' the enlistment of the volunteer is in consideration of his receiving a district bounty. The offer and his acceptance implied in the act of enlistment, are both necessary to raise a duty, from which a contract to pay can be implied. In these cases no offer of a bounty had been made before the enlistment, from which a contract to pay could arise. Nor was there any ratification by a subsequent resolution of the school board to pay bounties to those who had enlisted. The judgment of the court was therefore right.
But we do not agree with the learned judge in the reason he gave, that the liability to draft stated in the 8d section of the Act of 25th August 1864 ceased at the instant the name was drawn. Whatever might be deduced by nice criticism from the word itself, the draft is not then ended, its machinery continues at work, and the person on whom the lot falls is not fixed in the service, but may still put in his substitute. He is liable to the draft until this is done. The substitute it is, who as a volunteer earns the bounty, and it is only when paid by his principal, the 3d section of the act transfers to the principal the bounty his substitute would otherwise receive. Liability to service and payment to the substitute constitute the ground of title to the offered bounty, which he has paid in ease of the district.
But the judgment of the court being right upon the facts, is therefore affirmed.