pasties contro, and thus imitand a present soiling is a title in tila fais pues at once its the purchaser, a though-in attuar Collivers & areof is to be made absquent § 95. On the other hand, the following states have held that in case the mass is uniform no separation is necessary. in order to pass the title, provided such be the intention of the parties: New York, Minnesota, Virginia, Connecticut, New Jersey, Michigan, and others. Pleasants v. Pendleton, 6 Rand. (Va.) 473. Russell v. Carrington, 42 N. Y. 118. Merchants' Bank v. Hibbard, 48 Mich. 118. But see Hahn v. Fredericks, 30 Mich. 223. (In this case, however, a sale of wood, there was a mingling of qualities.) Hurff v. Hires, 39 N. J. L. 4. § 95a. The cases upon this important question, as to the need or not of a separation from a uniform mass in order to pass title, require, however, even in the same. jurisdiction, careful discrimination. Some of them turn upon the fact that there were distinguishing marks or signs upon some of the articles, or upon the boxes or barrels in which they were contained, thus affording discrimination; others emphasize the clear intention of the parties to pass title; still others are influenced by the fact that the whole mass was delivered to the vendee, and the portion desired was to be taken out by him. Some few of the states, also, are not very positive in the position. which they have taken, and, therefore, it is important that in each jurisdiction, in case of application of the doctrine, the whole subject should be reviewed through all the decisions of the particular jurisdiction. 93. Elevator and Pipe-line Cases: Closely connected with the foregoing questions are the, so called, grain-elevator and pipe-line cases. The owners of grain, oil and other merchandise store their property in these special kinds of warehouses, and, receiv ing certificates of storage, buy and sell such certificates, the contract of such sales conveying the respective goods without specification or "appropriation," although these portions sold are undivided parts of a uniform mass. This prevailing rule seems to be inconsistent with the rule held. in some states, that an appropriation is necessary when the goods sold are portions of a uniform mass, and it is, in the more recent cases, said that the explanation is that the goods are all owned by a "tenancy in common," and that the transfer of the certificate of storage merely transfers the previous owner's share in the common mass. This, however, cannot be true, since the grain or oil is being drawn out daily, and the grain or oil that one owner puts in to-day is drawn out, it may be, to-morrow to meet some certificate demanding delivery. The expression tenancy in common is also objectionable because such an ownership applies, properly, to lands. These transactions have also been called ordinary sales, and they have been called bailments. They are, strictly, neither. They are not sales, since, under the circumstances, no title can be given to any undivided portion of the identical mass as stored. They are not bailments, since in a bailment one is to receive the article or materials deposited. In the cases before us the vendee receives only an equivalent. They are, practically, examples of the contract of mutuum in the Roman law. The vendee receives, in return for the wheat, say, deposited, an equal number of bushels of other wheat, consisting of grains totally different from those stored. It is just as good, however, as if the identical grains were delivered to him. The certificates of deposit are honored, upon presentment by the lawful holders, as are checks upon a bank. The elevator company's contract is merely to deliver to the order of the depositor as many bushels of as equally good wheat as he deposited. Despite these clear principles, the pecul |