—The judgment in this case must be reversed. The plaintiff has mistaken his remedy. The facts stated in the complaint do. not show the payment of money not due from the plaintiff to the defendants, but, on the contrary, the payment of an assessment imposed upon the plaintiff’s property, which, by mistake, was credited to other property not owned by him. The case is not one to recover money paid by mistake, but to recover back money rightfully paid as lawfully due, because the creditor gave the benefit of the payment to another. Assuming the facts stated in the complaint to be true, there can be no doubt that the assessment imposed on the plaintiff’s lot is paid, no matter what entry be made on the books of the defendants, and they could be enjoined from selling such lot for non-payment of the assessment, or be compelled, on a proper application, to remove it as an incumbrance or lien.
In Allen a. The Mayor (4 E. D. Smith, 404), the money was paid by a person against whom the defendants had no claim, and upon whose property no assessment had been imposed, although paid under the supposition that his property had been in fact assessed. That case is, therefore, essentially different from the one in hand, which, I think, cannot be sustained on principle or authority.
The judgment must be reversed.