By the Court,
Taggart, P. J.In the case of the Commercial Bank of Buffalo v. Kortright, (22 Wend. 348,) the stock, together with a note of §10,000, was placed in the hands of Barton, with the name of the stockholder indorsed on the back of the certificate, and a seal attached thereto, with express authority to Barton to obtain a loan upon the stock for the sum of §10,000. Barton negotiated the stock by delivery to Kortright, and obtained a loan of §25,000. Kortright gave a receipt for the stock, promising to return it on payment of the §25,000 with interest, on demand, after thirty days from the date of the receipt. Kortright wrote over the signature of the original stockholder a transfer of the stock to himself, constituting S. A. Sherwood an attorney to do all necessary acts to perfect the transfer. After the expiration of the thirty days specified in the receipt given by Kortright, Sherwood went to the Bank of Buffalo and requested permission to transfer the stock, which *585was refused by the original stockholder, who was then acting as president of the bank, on the ground of apprehended difficulty in respect to the note of $10,000 which had not been transferred to Kortright although he received the $10,000 from Barton, and as it appeared on trial that he had obtained the note.
There is a manifest distinction between that case and this. Here there is no evidence that the plaintiff Dunn purchased the certificates. He holds in his hands the naked blank assignments and the certificates. He does not prove that he owned them, or had any interest in them whatever. It is true he had possession of the certificates standing in the name of Greene and Buckland, and attached to such certificates were blank assignments and powers of attorney authorizing the transfer to blank by blank attorney. If the plaintiff was the purchaser of these certificates, he was undoubtedly authorized by reason of such purchase, and his ownership thereof, to write in his own name as assignee of the stock, and such name as he chose as the attorney to make such transfer. So far the case of Kortright v. The Commercial Bank of Buffalo decides. But it does not decide that the naked possession of the certificates and blank assignments and powers of attorney is evidence of title.
Are certificates of stock, in reference to negotiability, placed on substantially the same grounds as bills of exchange and promissory notes? Are they transferable by mere indorsement and delivery ? Are a bond and mortgage or any other evidences of debt not negotiable, assignable by the mere act of writing the name of the party on the back and delivering the instrument with the name so indorsed, without any consideration or agreement ? If not, is it not incumbent upon the party claiming under such transfer, to prove the contract or consideration? I have found no case where the holder of an instrument was authorized to write the contract on which he claimed, over the signature or indorsement, except where the proof of the consideration and contract was first made. (See Leonard v. Vredenburgh, 8 John. 29; Bailey v. Freeman, 11 Id. 121; Herrick v. Carman, 12 Id. 159; Nelson v. Dubois, 13 Id. 175; Campbell v. Butler, 14 Id. 349.). So in the case of Kortright v. Commercial *586Bank of Buffalo, an agreement and consideration was proved. But in this case the court are called upon to presume from the plaintiff’s possession of the certificates and blank assignments and powers of attorney annexed, that he purchased the stock of Greene and Buckland, and that his name was inserted or assumed to be inserted in the instrument as assignee. The plaintiff not only asks the court to assume the existence of the contract or consideration to support the assignment, but that the name of Israel T. Hatch, or the bank itself, is inserted in the instrument as the attorney of Greene and Buckland, and that they are thereby authorized to assign the stock on the books of the bank to the plaintiff.
It seems to me that this is carrying the rule — already sufficiently broad — beyond all precedents on that subject; and for one I can not consent to extend it beyond cases already adjudicated.
There is another difficulty in the way of the plaintiff’s right of recovery. Admitting that he is the actual owner, as assignee, of the stock, the power and authority to assign it upon the books of the bank must come from him. The bank had no authority conferred upon it by the instruments annexed to the certificate. Greene and Buckland had given no power either to the bank or any of its officers. All the power which they had given was in the plaintiff. Although the bank might permit the assignment, it had no authority to make it. The plaintiff authorized Babcock to demand an assignment, not to make it. The power of attorney to Babcock confers no authority whatever upon him, or upon any other person, to make the transfer- upon the books. The plaintiff assumes in making that power of attorney, that the bank already possessed all the requisite power to make the assignment, and he therefore simply empowers Babcock “ to ask, demand, and require of the proper officers of the Commercial Bank of Buffalo, to assign and transfer into my name on their books the stock or shares assigned to me by J. C. Greene and J. W. Buckland or either of them.” He gave Babcock no power to make the assignment, and gave the bank officers no power to make it, but demands of the bank the performance of an act *587which neither it or any of its officers had any authority to perform.
[Orleans General Term, February 9, 1852.Taggart, Marvin and Hoyt, Justices.)
It follows then that the ruling of the judge at the circuit, that “ the plaintiff was entitled to recover as to the whole four certificates,” and his charge to the jury, to the same effect, was erroneous. A new trial must therefore be granted.
It is unnecessary, with the view I have taken, to notice the other points in the bill of exceptions. Having arrived at the conclusion that the plaintiff is not entitled to recover, on the grounds before stated, I give no opinion upon the decision at the circuit as to the admission or rejection of evidence, or the measure of damages, or whether the proceedings in the court of chancery and service of the injunction constituted a defense to the action.
Hew trial granted.