The court is of opinion that the defendant cannot, in this action, compel the plaintiff to apply the funds in his hands, as assignee of Cross Wilson, to the extinguishment of Mrs. Bergen's liability, as indorser of the note, upon *Page 348 which the action was brought. If the accounts of the plaintiff, as assignee, had been settled and he had in his hands an admitted or established balance, it may be that, to avoid circuity of action, he could be compelled now to make the application. But such is not the case. The amount in his hands applicable to the indemnity of Mrs. Bergen, as indorser, is not admitted and can only be ascertained by an accounting of the assignee, and he is entitled to have his entire account as such settled in one accounting which shall protect him against all the parties entitled to claim under the assignment. He cannot be called upon to account separately to each creditor or class of creditors. If his account were settled, as between him and the estate of Mrs. Bergen in this action, other creditors would not be bound by such accounting. The claim which he is prosecuting is due to him in his own individual right. It is true that the executor of Mrs. Bergen, if he pays the claim, can compel the repayment to him of a pro rata share of the balance in plaintiff's hands, as assignee, when ascertained, but for the reasons before stated we do not think that balance can be ascertained in this action.
The judgment should be affirmed.
All concur.
Judgment affirmed.