
    Spotswood v. Bentley, as Adm’r, etc.
    
      Action for Money Had and Received.
    
    (Decided February 6, 1902.)
    1. Administrator; when not liable in representative capacity for money had and received. — An action will not lie against an administrator in Ms representative capacity for money bad, and received to ¿he use of plaintiff.
    Appeal from Madison Circuit Court.
    Tried before Hon. H. C. Speake.
    Action in Code form instituted by Spotswood against Bentley as administrator of the estate of Bartley Harris, deceased, for money had and received to the use of the plaintiff. A demurrer to the complaint was sustained, and plaintiff appeals.
    Humes, Sheffhy & Speake, for appellant.
    R. W. Walker, contra,
    
    cited 'Daily’s Admr. v. Daily, 66 Ala. 266.
   DOWDELL, J.

— The suit ivas brought against the defendant, appellee itere, in his representative capacity as administrator of the estate of Bartley Harris, deceased, yet the complaint shows no cause of action against the defendant in such representative capacity. If the money claimed by the plaintiff as had and received by the defendant for plaintiff’s use and benefit constituted assets of the estate which came into the defendant’s hands as administrator, then the complaint wholly fails to show any cause of action in the plaintiff.—Lowery v. Daniel, 98 Ala. 451. If, on the other hand, the money claimed as had and received by the defendant for plaintiff’s use and benefit was not assets of the estate represented by the defendant, then certainly he could not be made liable in liis representative capacity. — Daily’s Admr. v. Daily, 66 Ala. 266.

We find no error in the record and the judgment of the circuit court will be affirmed.  