delivered the opinion of the Court:
The question in this case is, whether the money paid by Coburn into the Bank of Ottawa, where the note was payable and had been left for collection, was a payment and satisfaction of the note. This is the testimony of Fisher on that point: “ On or about the 22d ¡November, 1855, Mr. Coburn called on me in my office, and left with me three hundred and seventy-one ($371) dollars, to pay the above note when it should be sent, provided it was accompanied with proper authority to cancel the mortgage the note was secured by, and all the title papers were then correct, and a perfect chain of title given him by said Kent, of the lands on which the mortgage was given to secure the payment of the note, and for which that was the remainder in full of the consideration to be paid for the same by Coburn to Kent, but to retain the money, if I could do so, until the title was perfect. The money was credited to Mr. Kent, in collection account, and the note put away for Mr. Coburn, and at the same time an examination made of the title. After the examination of the title was made, within a day or two of the 1st January, 1856, as I now remember, the title was found defective, and Mr. Kent at once advised that the money was paid to his credit, but held, by request, until the mortgage was duly canceled and the title made perfect. To this procedure Mr. Kent made no objection, but assented to it, and set himself at once about finding a Mr. Coulter, from whom a quit-claim deed was wanting to make the title perfect and take up his money.” This was a Conditional, and not an absolute, payment. Mr. Fisher was instructed to apply the *348money to the payment of the note, only in the event he should find the title clear and perfect, which contingency never happened, so that Fisher was never authorized to apply the money in payment of the note. Fisher always continued the debtor of Coburn for the money, as he was never authorized to pay it to any one else. If he passed it to the credit of Kent on the hooks of the hank, that was conditional on his perfecting the title, which it does not appear was ever done, at least, till after the hank failed. Of this conditional credit, Fisher informed Kent, at the time he informed him of the deposit, so that, in fact, the money was never subject to the order of Kent, nor did he, at any time, ever have a cause of-action against the hank for it. The note was never paid, and the judgment must be affirmed.
' Judgment affirmed.