It appears by the motion, that on the 21st day of January, 1811, the defendants agreed, by vote, to sell the , pews in their meeting-house, prescribing the form of conveyance to be given, and the security to be taken, and appropriated the avails, so soon as 5,000 dollars should be raised, if raised before the 1 st day of September, then next, as a perpetual, permanent and invariable fund, for the maintenance of the gospel, and an orthodox minister ; that the requisite sum was seasonably raised, by a sale of the pews, whereof the plaintiff became a purchaser of one, and therefor gave his note, *461dated March 29th, 1811, for 150 dollars, payable to the treasurer, on the 1st day of April, 1812, with interest annually; which interest, amounting to 36 dollars, was regularly paid, by the plaintiff, until the 1st day of February, 1816, when the note was sued, judgment obtained, and execution taken out, and satisfied on the real estate of the plaintiff; that in October, 1812, an orthodox minister was settled in the society, and the interest of the fund duly applied to his support, until January, 15th, 1818, when the defendants voted to change the mode of supporting the minister, and give up the notes received, for pews sold, on the purchasers’ paying the interest accrued, and releasing the pews to the society.
Upon these facts, the plaintiff, by the two first counts in his declaration, claimed to recover the amount of the execution, obtained against him by the defendants, and the sheriff’s fees thereon; and by the third count, the amount of interest paid on his note. But the court directed the jury to find for the defendants.
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. O'Harra v. Hall, 4 Dall. 340. Though thé 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 cequo 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 to 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 hac fader a veni.”
*462In Marriott v. Hampton, 7 Term Rep. 269. where the plaintiff, having paid a debt, and taken and lost a receipt, was sued, and obliged to pay it again, but afterwards finding the receipt, he brought assumpsit for the money; Lord Kenyon was of opinion, that after a recovery by process of law, there must be an end of litigation ; that money paid under such process, could not be recovered back, how unconscientiously soever retained.
The case of Philips & al. v. Hunter & al. in err. 2 H. Bla. 402. has been supposed to establish a contrary doctrine. But that case was decided on the principles of the bankrupt laws, regardless of Moses v. Macferlan. Lord Ch. J. Eyre thought, that no other decided case countenanced such an action, and combated it forcibly and conclusively. “ Shall the same judgment,” said that learned Judge, “createadufy for the recoveror, upon which he may have debt, and a duty against him, upon which an action for money had and received, will lie ? This goes beyond my comprehension. I believe, that judgment did not satisfy Westminster-Hall, at the time : I never could subscribe to it; it seemed to me to unsettle foundations.” P.416. Though this was the opinion of one judge only, it has since been quoted with approbation, by Ch. J. Kent, on delivering the opinion of the court, in Smith v. Lewis, 3 Johns. Rep. 157. and following, haudpassi-bus cequis, the example of Lord Ellenborough, in Imlay v. Ellefsen, 2 East 453. and of the supreme court of New-York, in Smith v. Spinolla, 2 Johns. Rep. 198. I have no hesitation in saying, that it is the better opinion, and is to be adopted as law.
But this is not the only objection to the plaintiff’s recovery. The defendants have received no money as the avails of their judgment: they have only acquired a title to real estate, of which the plaintiff may divest them, on a proper application to the proper court. This is a novel attempt to convert land acquired by execution, into money had and received ; and it may be added, as a conclusive answer to the plaintiff’s claim, that he retains the pew for which the note was given; the consideration of which has not failed, and, therefore, could not be recovered back, even if it had been in money.
With respect to the money claimed in the third count, it was voluntarily paid by the plaintiff, on his own note, then *463justly due, and has been appropriated, and applied, by the defendants, to the use for which it was intended, by the plaintiff.
I would not advise a new trial.
The other Judges were of the same opinion, except Hosier, Ch. J., who, not having heard the case argued, gave no opinion.New trial not to be granted.