We agree entirely with the learned judge of the court below in holding that the city having accepted payment of the amount of the assessment made under the acts of 1887 and 1889, cannot now compel another payment because those acts were subnequently decided to be in conflict with the requirements of the *518constitution. At the time of the payment the liability of the defendant was asserted by the plaintiff, no question of the validity of the law was then raised, the defendant was apparently bound to pay the money, and could not have recovered it back; and it would be strange doctrine now to hold that the city was not also bound, when it was she who asserted her legal right to recover the money and obtained it by force of her adverse proceeding and the assertion of her right, accompanied with a demand for the money on peril of legal proceedings to enforce the payment of her claim.
Moreover it is very doubtful whether this case comes within the provisions of the act of 1891. The language of the act really embraces only cases in which the properties peculiarly benefited could not be assessed owing to the acts under which the improvements were made being declared unconstitutional, or for any other reason the properties could not be assessed “ as the law under which they were made, or are being made, contemplated.” This contingency is not true of this case because under the law as it then was this defendant’s property was assessed for the same benefits and he paid the assessment.
Judgment affirmed.