Heisel, J.,
delivering the opinion of the court:
We feel clear that the testimony in this case does not support the narr. The count for money had and received only lies when there has been payment of money to the person against whom the action is brought. In this case there is no testimony that anything was ever paid to the defendant. From the evidence, it appears that the action should have been an action of trespass against Tatman for injury to real estate. For the reasons the court have just stated to counsel, we direct you to find a verdict for the defendant.
Verdict for defendant.