(dissenting). — I do not think the opinion of the court passed upon the real point raised in the second ground of demurrer.
A municipal corporation has no implied power to issue promissory notes. Dillon, Mun. Corp., §125. Such corporations have the implied power to contract for such supplies as they need, but the statute in the case of towns prescribes a method of payment which is exclusive. Gen. Stat., §§685, 687. There is only one way that a town treasurer can pay out corporation money, viz., on warrants signed by the mayor and countersigned by the clerk. No warrant can be issued until a claim has been presented to, and audited by, the council. Gen. Stat., §675. A *146warrant must specify the purpose for which it is drawn. Id. The note in suit did not show for what purpose it was drawn, and for that reason, and because it was not a warrant at all, the treasurer could not, under the law, pay it. It was signed by the mayor and clerk, but nothing appeared to show by what pretended authority it had been so signed. It was under no circumstances that appeared the note of the corporation.
It is conceded that the judgment, if one be obtained, must be satisfied by the issuance of a warrant and its payment in its order; but why should a municipal corporation be subjected to the danger of a contempt proceeding, when the original claim asserted has never been presented to the council for allowance, as the statute requires ? The complaint alleged that the note had been presented, but did not allege that a claim for the balance due upon the sale of a fire engine had been. If this is a promissory note at all, the town was without defense, except those rare defenses which a maker can present against his negotiable paper; whereas all defenses would be open to it upon the original transaction.
The opinion has the effect to allow the pleader upon a promissory note to remain in court after it is shown that he really has no note, but only a money demand on contract, which is such a variance as the rules of pleading do not permit.
For these reasons I dissent.