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.