This decision has been severely criticized and is often declared to have been overruled, in effect, by Marriot v. Hampton, supra, and subsequent cases:

Carter v. First Ecclesiastical Society, 1820, 3 Conn. 455: Peters, J. (p. 461): "To entitle the plaintiff to a verdict, the case of Moses v. Macferlan, 2 Burr. 1005, must be revived. But the authority of that case has been too often shaken, to have any weight at the present day. Though the principles, relating to indebitatus assumpsit, so luminously illustrated in Moses v. Macferlan, have been universally recognized, their application to that case has been generally reprobated, by the Bench as well as the Bar. In that case, money obtained from the plaintiff, pursuant to a judgment of a court, then in force, was recovered back, on proof of facts dehors the record, whereby it appeared, that the defendant, ex aequo et bono ought not to retain it. This has been considered as an over-haling or impeaching of a judgment, indirectly. But Lord Mansfield himself, in that very case, informs us, 'that the merits of a judgment cannot be over-haled, by an original suit, either at law, or in equity. Till the judgment is set aside, or reversed, it is conclusive, as to the subject matter of it, to all intents and purposes,' p. 1009. How, then, could it be against conscience for Macferlan to retain this money, thus awarded him, by a court of justice, merely because he had violated his agreement, for which he was liable in damages, but not to refund the money he had recovered. Well might he have said, ' Non in hoec foedera veni.' "

Kirklan & Hickson v. Brown's Admrs., 1853, 4 Humph. (23 Tenn.) 174; 40 Am. Dec. 635: Reese, J. {p. 175): "In the great case of Moses v. Macferlan, 2 Burr. 1005, the ex aequo et bono principle of the action of assumpsit, announced by Lord Mansfield, as well as the facts and circumstances of the case, might seem to give some ground for the maintainance of a suit like this. But of that case, as well as of some others determined by Lord Mansfield, it may be said, materiam superavit opus. The great principles marked out and developed by his original and powerful intellect remain to guide us; but their framework, the facts and circumstances to which they were appended, not always appropriate, have in some instances given way and ceased to sustain them."

It has been contended, however, that the case is distinguishable from those with which it is supposed to be in conflict, in that the subject matter of the action, although offered as a defense in the suit against the plaintiff in the Court of Conscience, was not passed upon by that court because of want of jurisdiction.1 Certainly, Lord Mansfield himself did not regard his decision as an overhauling of the judgment of the Court of Conscience. He expressly declares that "the merits of a judgment can never be over-haled by an original suit, either at law or in equity." But since the theory of the action in the King's Bench was the recovery of the money paid under the judgment of the Court of Conscience upon the ground that the payment of such judgment unjustly enriched the defendant, a decision allowing such recovery would seem to have the effect, at least, of overhauling the former judgment. It is true that Lord Mansfield did not hold the former judgment "wrong," i.e. based upon an erroneous conclusion from the facts which the Court of Conscience was able to consider, but if that be a valid distinction, might not Lord Kenyon have held in Marriott v. Hampton, that while the court which entered the former judgment undoubtedly reached a sound conclusion from the facts then in its possession, the subsequent discovery of the receipt by the plaintiff convinced him that the payment of the former judgment had unjustly enriched the defendant and that a recovery in quasi contract should therefore be allowed?

In regard to Moses v. Macferlan it may be added that Mac-ferlan obviously committed a breach of contract in suing Moses on his indorsement, and that Moses might have maintained special assumpsit for the damages resulting from such breach. If the theory of Moses' action had been the recovery of such damages rather than the recovery of money paid under constraint of a judgment, there would appear to have been no valid objection to a decision in his favor.1

1 "In Moses v. Macferlan, it was decided that a defendant who is unable to avail himself of certain matter because the court in which the action is brought cannot entertain the defense for want of jurisdiction, is not precluded by the payment of a judgment therein from making such matter the basis of an action for recovery of the money so paid." - Keener, "Quasi-Contracts," p. 413.

Sec. 230. (2) Void Judgment

If a judgment is not merely erroneous but void - as for want of jurisdiction - it is of course totally without legal effect. And since nothing is determined by it, the doctrine of res judicata is no obstacle to the recovery of money collected thereunder.2 Payment must have been made under compulsion, however, and it has been held that money paid in satisfaction of a void judgment upon which execution had not been issued may not be recovered.3

Sec. 231. (3) Judgment Satisfied But Not Discharged

Money collected by means of an execution issued upon a judgment which has been paid but not discharged of record may be recovered, since the overhauling of the judgment is not involved.4 So also where money is paid but not credited on a judgment and the whole amount of the judgment is subsequently collected by levy and sale, the excess must be repaid to the judgment debtor.5