The opinion of the court was delivered, October 31st 1867, by
Agnew, J.— This is not a case of contract. A conscript, unlike a volunteer, enters the service compulsorily. There is no point in the progress of the draft where he can stop and say, I will not serve unless I obtain a bounty. In the absence of an express agreement, there is no ground upon which the law can imply his consent to serve for the offered reward. The decided cases applicable to volunteers do not govern this. If sustainable at all, it must be supported only on the ground of a debt or duty virtute statuti. But the Act of 15th March 1865, Pamph. L. 24, leaves it wholly discretionary as to the payment of bounties to drafted men. It may be paid to the family instead of the conscript, and at such time and in such sums as the authorities deem it proper. The resolution of the school board of Guilford, passed upon the 25th of March 1865, after Zumbro was drawn, was not a *434resolution to pay a bounty to any one, but a determination only to proceed to levy a tax sufficient to pay bounties to drafted men. But the authorities stopped there — made no levy and collected no tax for this purpose. They dropped the proceeding, and who was there to compel them to go on ? No one had acquired an interest by appropriation to himself or to a class of which he was one. No court would award a mandamus against the directors, and certainly it could find no elements to support a contract or raise a duty.
By the terms of the stated case, judgment for the plaintiff can be entered only in the event of the court being of opinion that he is entitled to recover. Pie must satisfy us, therefore, that the facts stated raise a contract or a duty to pay. The facts do not warrant this conclusion, and judgment must, therefore, be reversed.
Judgment reversed, and judgment for the defendant below upon the case stated.