Baskin v. Sample , 6 Ala. 255 ( 1844 )

ORMOND, J.

To entitle the plaintiff to a recovery in this action upon the count for money had and received, it was necessary to prove to the jury that the money had been collected from the persons named in the receipt. No presumption can arise that the money had been received, because the administratrix refused to account and pay over, or to explain the actual state of the case. No such inference could be drawn from the facts if the presentation had been to tho intestate in his life, much less to his adminis-tratrix, who may have been entirely ignorant of the facts.

The conduct of the administratrix is perfectly consistent with the insolvency of the persons from whom the money was to have been collected. But whether they were solvent or insolvent, was unimportant: the fact to bo proved was, that the money had been collected from them; or at least some proof must have been offered from which such an inference would arise.

For the error of the court in its charge to the jury, its judgment is reversed, and the cause remanded.