¶1delivered the opinion of the court.
¶2This was an action in the Circuit Court of Yazoo county, by the second indorser of a promissory note, against the representatives of the first indorser. It appears that the second indorser being sued, was compelled, by judgment recovered by the holder, to pay the amount of the note; and the defence now set up is, that the second indorser had been duly declared a bankrupt, before the judgment above-named was recovered against him, and that he “ negligently omitted” to avail himself of this defence.
¶3Bankruptcy was a defence of which the party might have availed himself, or have waived, at his pleasure. It was certainly not a defence of which the first indorsers could have availed themselves, if the suit which was commenced against them had been prosecuted to final judgment.
¶4Judgment affirmed.