ber, A. D. 1905, the said Stevenson, in the customary place of business of said bank, paid and delivered to this affiant for the said bank, forty-two thousand ($42,000) dollars in currency for the cancellation, payment and discharge of the said several joint promissory notes of said Winchester and said Stevenson; that at the time of making said payment, said Stevenson said to affiant, substantially, that he, the said Stevenson, had been obliged to mortgage everything he had on earth to raise and procure the said sum of money; that thereupon affiant, in behalf of said bank, cancelled and discharged the said notes and said indebtedness and delivered the same, together with all the said above described capital stock of said. several corporations, to the said Stevenson, and also in behalf of said bank endorsed upon the said instrument of writing made and executed by the said Winchester on or about the twenty-sixth day of October, A. D. 1903, a further instrument of writing, in words and figures as follows, to-wit:

'For and in consideration of the sum of one dollar to it in hand paid, and other valuable considerations received by The First National Bank of Denver, Colorado, it hereby sells, assigns, transfers and set over unto A. M. Stevenson and his assigns all the right, title and interest which said bank now has or may hereafter acquire of any kind or nature in and to the two causes of action and actions at law and each of them mentioned in the foregoing instrument in writing, and in and to recovery made thereon or thereunder. Dated Denver, Colo., Oct. 12th, A. D. 1905. First National Bank of Denver, Colo., by Thomas Keely, (SEAL) Vice Pres.

F. G. Moffat, Sec.

That all of said last described instrument of writing, save and except the signature and seal, was dictated and composed by the said Stevenson.""

Afterward Keely made another affidavit, which he denominates "a further and additional statement," in which

he does not deny anything that was said in the first affidavit, but says that his statement as to ownership of the mining stocks was based on what Winchester had told him. That Stevenson paid him $42,000 in currency in full settlement of the notes of Winchester and Stevenson. That a man named Whitted was present and introduced to him, and that Stevenson claimed to represent him; that he assigned to Whitted 430,000 shares of the Doctor Jack-Pot Consolidated Mining Company, which had been pledged to secure the said notes; that he also executed to said Whitted a warranty deed for the property theretofore pledged by the wife of Winchester as a part of the security for the notes, and delivered such deed to Stevenson and assigned and delivered the remaining mining stocks to Stevenson.

We do not determine as to who was the owner at the time of any interest in this suit, as between Winchester and Walker, but have recited what we deem sufficient to show that there was presented a clear issue of both law and fact as to whether Walker was the owner of all or any part of the claim for recovery in this action.

This issue was one to be tried in the regular course of procedure, and should not have been determined by the court upon the motion to substitute parties plaintiff. It is plain that Walker's claim was adverse to that of Winchester, and likewise to the interests of the defendants in the action. The procedure in such a case, provided by the code, is by petition in intervention, which should have been followed in this case.

The defendants in error contend that the order of the court granting substitution of parties plaintiff was authorized under sec. 15 of the code:

"Sec. 15. An action shall not abate by the death or other disability of a party or by the transfer of any interest therein if the cause of action survive or continue. In case

of the death or other disability of a party, the court, on motion, may allow an action to be continued by or against

his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action."

Counsel cite many cases in which such substitution of parties has been allowed. But no case is cited, and we know of none, wherein such substitution has been permitted, where an issue was presented involving the very fact of transfer or ownership of interest.

"Where the assignment is not absolute, or the assignor retains an interest in the chose, or there is a controversy between the assignor and the assignee touching the assignment, or there remains a liability on part of the assignor, the assignor should be made a party to the bil! brought by the assignee to enforce the chose assigned." 4 Cyc. 103.

If there is a controversy between the assignor and assignee touching the assignment, the court will direct the assignor to be made a party for the protection of all; otherwise he need not be a party. Moray v. Forsythe, Walker, Ch. 465; Miller v. Bear et al., 3 Paige (N. Y.) 465.

In support of the text in 4 Cyc., supra, that where the assignment of the chose is not absolute, the assignor is a necessary party, it is said in Miller v. Henderson, 10 N. J. Eq. 323:

"Abrahams did not assign his interest in the agreement absolutely to Jermime Chambers. It was a conditional assignment, and he retained an interest in the property assigned. Where the mortgagee assigns the mortgage absolutely to a third person, it is not necessary that the mortgagee should be a party to a suit for the foreclosure and sale of the mortgaged premises. But if the assignment is not absolute, but the mortgagee retains an interest in the mortgaged security, then he is a necessary party, because he is interested in the suit, and particularly in taking the account of what is due on the security." See also Land

Co. v. Elkins (C. C.), 20 Fed. 545; Schilling v. Mullen, 55 Minn. 122, 56 N. W. 586, 43 Am. St. 435.

It was held in Longbine v. Piper, 70 Pa. St. 378, that one acquiring the title cannot oust the plaintiff on the record against his will. Construing a statutory provision similar to our sec. 15 of the Code, the court said:

"The words of the Act of 1850 are therefore not mandatory, but permissive only. "The writ shall not be affected thereby (to-wit, by the change of title), but the purchaser or assignee may prosecute said action.' But he is not bound to prosecute the suit brought by the former owner; he may sue out his own writ to recover the premises, and for this may have good reasons. But when he asks to oust the plaintiff from his action and compel him to retire from his suit, a very different question arises. The plaintiff may have rights as he believes, which entitle him to prosecute his action to a termination for his own benefit. He may deny wholly the divestiture of title claimed by the person alleging himself to be the purchaser, and entitled to substitution. For instance, in the present case Longbine's title was not sold at sheriff's sale, but the title of W. W. Piper, his grantor. Now, what is there to prevent Longbine from denying the effect of the sale as a transfer of his title? He may be able to show that the land was not, at the time of sale to him, subject to the lien of the judgment, or that it had been released or discharged therefrom, or that he has some other defense good in equity or law. It is no answer to this to say the fact or facts alleged by him are not true, and this has been found by the court; for the effect of such a position is to deny to him his constitutional right of trial by jury, and to make the court alone the tribunal to determine the facts. The power to award an issue to determine the truth of his allegations does not mend the matter, for this power is discretionary.

By the eleventh section of the ninth article of the constitution, all courts shall be open, and every man for injury

done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. The remedy is a parcel of the right; and laws, therefore, that so change the nature and extent of existing remedies, as materially to impair the right, are a violation of the right. Greed v. Biddle, 8 Wheat 17 (5 L. Ed. 547); Bronson v. Kinzie, 1 Howard 317 (11 L. Ed. 143). Nor does the prosecution of the plaintiff's action prevent the purchaser or assignee from bringing his own action and prosecuting it to verdict or judgment. He is, therefore, not denied his remedy. Now, surely we are not to interpret the Act of 1850 so as to make it an instrument of injustice, and to enable a party claiming title adversely to the plaintiff in the action to supplant him nolens volens."

To the same effect is the case of Smith v. Harrington, 3 Wyo. 503, 27 Pac. 803.

As gathered from the affidavits in this case, it is not disputed but that the assignment was not absolute, but, on the contrary, it was given solely as collateral security; nor is it disputed that all the security given to indemnify the bank was the property of Winchester and his wife.

There is no evidence as to the value of such securities, nor that they were insufficient aside from the assignment in controversy, to discharge the entire debt. There is no showing as to the power or authority of the bank to assign the stocks and interest in this cause of action, or to execute a deed for the real property of the wife of Winchester. Winchester claims that more than $25,000 of the debt was the personal debt of Stevenson, while Stevenson admits that $12,000 was his personal debt. Both Stevenson and Keely say that Stevenson paid the debt in currency to the bank, and the latter says that, acting for the bank, he cancelled and discharged the notes and the indebtedness. There is no contention that the bank sold the notes and securities.