The mere payment of freight charges by a consignee does not divest title to the freights out of the shipper and vest it in the consignee. Clarkson v. Stevens, 106 U.S. 505; Gorman v. Kennedy, 126 Mich. 182; Smart v. Batchelder, 57 N.H. 140; Cornell v. Clark, 104 N.Y. 451; Smith v. Wisconsin Investment Co., 144 Wis. 151; Wagar v. Farren, 71 Mich. 370; Pike v. Baughn, 39 Wis. 499; Blodgett v. Hovey, 90 Mich. 571. That the Government, by the practice here concerned, obtains the same benefit that would have followed from taking title at points of shipment on land-aided lines and paying land-grant rates, is immaterial.

What remained, then, to be done, before the property in the ties would pass to the plaintiff, was the separation and setting apart of 152 ties from the whole number. When goods are sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller until the specific property is separated and identified. 2 Kent Com. 496; Davis v. Hill, 3 N.H. 382; Messer v. Woodman, 22 N.H. 172; Warren v. Buckminster, 24 N.H. 337; Fuller v. Bean, 34 N.H. 290; Ockington v. Richey, 41 N.H. 275; Bailey v. Smith, 43 N.H. 141; Prescott v. Locke, 51 N.H. 94, 99; Jenness v. Wendell, 51 N.H. 63, 69; Smart v. Batchelder, 57 N.H. 140; Riddle v. Varnum, 20 Pick. 280; Macomber v. Parker, 13 Pick. 175; Foster v. Ropes, 111 Mass. 10. It is contended that this question is one of intention, and that if the plaintiff and Wentworth intended that the property in the 152 ties should pass to the plaintiff, then it did pass, notwithstanding they had never been separated from the larger number.