
    Hopkins v. Seymour and another.
    The holder of an instrument payable to bearer and transferred to him by delivery can sustain an action upon it in his own name, notwithstanding it may be payable in other articles than money.
    Error from Red River. The defendant in error sued the plaintiff in error and another upon tlie following note:
    “$720. On or before the first day of January, eighteen hundred and fifty, “we, or either of us, promise to pay to T. J. Corneluss, or hearer, seven hun- “ dred and twenty dollars, for value received, which may be paid in casli notes “ on solvent men living in Red River county, Texas, under one hundred dollars “each, and drawing ten per cent, interest, with our indorsements on them, “ this 21st of September, 1S47.
    “(Signed) R. SCURRY,
    “R. M. HOPKINS.”
    
      The petition, avers that the payee, Cornclnss, for a valuable consideration, transferred the note to the plaintiffs by delivery, and that they are the lawful holders and bearers thereof.
    The defendants excepted to the petition, on the ground that the note sued on was not a negotiable promissory note, and coulcl not be assigned by delivery, so as to enable the assignee to maintain his action thereon. The exception was overruled. There was judgment for the plaintiffs, and the error assigned was the overruling of the exception.
    
      Morrill Dickson, for plaintiff in error.
   WhebleR, J.

When the defendants had forfeited the privilege reserved of discharging their liability by the delivery of other notes, it became an- under-talcing for the payment of money absolutely. The petition avers the nonpayment of the note and its transfer to the plaintiffs after maturity, and the exception admitted these averments. But the exception was rightly overruled, for the reason that the note sued on, though not technically a promissory note at the time of its inception, was assignable in equity by delivery; and as, in our courts, the equitable as well as the legal rights of parties are recognized and enforced, the plaintiff might well maintain the action in his own "name. (Smith v. Clopton, 4 Tex. R., 109, 114,115.)

Judgment affirmed.  