448 The Cambridge Law Journal [1994]

conditions are to be enforceable, or whether he was still considering

the question of relevance. It is likely that the issue will be further
litigated, if only because the device of a condition attaching to a
benefit is a useful method of circumventing the rule in Austerberry,
now affirmed in Rhone v. Stephens.
So, the law is unaltered: between freeholders, the burden of a
positive covenant relating to land can pass neither in law nor equity.
It may be inconvenient, but at least it is certain, and thus the law
will remain, until Parliament takes note of the Law Commission's
proposals and legislates accordingly. The mystery of section 79
persists. Only the rule in Halsall v. Brizell has been (partially)
elucidated. One hopes that the legal costs incurred by the parties to
this unhappy dispute were not too enormous.

LOUISE TEE

SHARE AND SHARE ALIKE?

IN Hunter v. Moss [1994] 1 W.L.R. 452, Moss was the founder of

Moss Electrical Co. Ltd., and owned 950 of the 1,000 issued shares.
In September 1986 he orally declared himself trustee of 50 of his shares
in favour of Hunter. It is clear on the facts, and important for purposes
of analysis, that he did not declare himself trustee of the whole of his
holding in proportions for himself and Hunter: his remaining 900
shares were not to be subject to any trust. The question was whether
the trust declared was void for uncertainty of subject-matter, in that
Moss only quantified, and did not specify, which of his shares were
subject to the trust.
At first instance ([1993] 1 W.L.R. 934) Colin Rimer Q.C., sitting
as a deputy High Court Judge, had held the trust good, because the
shares were legally identical, so that it did not matter which of them
were the trust property; and because, immediately after the declaration,
the court could, if required, have executed the trust by requiring Moss
to convey 50 of his shares to Hunter or his nominee. The judge
distinguished authorities appearing to suggest the contrary, in particu-
lar Re London Wine Co. [1986] P.C.C. 121 because there the cases of
wine were potentially different one from another. Considering the
matter as of first impression in England, he cited Rollestone v. National
Bank of Commerce in St. Louis (1923) 252 S.W. 394, a decision of the
Supreme Court of Missouri on facts similar to the present case. He
noted also that there is nothing at all remarkable in a legacy of part of
a testator's holding of shares: though the particular shares bequeathed
are not specified, the gift is good, and is a specific legacy: see for
example Re Clifford [1912] 1 Ch. 29. The Court of Appeal dismissed

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 C.L.J. Case and Comment 449

an appeal against the trial judge's conclusions on the uncertainty

point. Dillon L.J., who gave the leading judgment, specifically adopted
the legacy analogy.
The answer given at both levels might appear supremely sensible.
Unfortunately, however, it necessarily implies some remarkably
unorthodox views about the function and nature of trusts.
The function of a trust is different from that of other superficially
similar institutions. A trust may last for a considerable period of time
or even indefinitely; the principal function of the law relating to trusts
is to govern proprietary interests and dealings with the trust property,
for the protection of the beneficiaries, during the continuance of the
trust. Although the duties of personal representatives have something
in common with those of trustees, the basic function of the rules of
sucession is to ensure a proper and efficient distribution of property
rather than to regulate its retention. Vagueness as to the specification
of the subject of a legacy may well not prevent an executor making a
proper distribution, but it does not follow that a similar vagueness
about property which is to be subject to a trust is of no account.
Secondly, it is an essential feature of a trust that, while it continues,
the trust property belongs in equity to the beneficiaries. They have
proprietary interests, amounting to ownership in equity, good (subject
to statute) against anybody except a bona fide purchaser of the legal
estate for value without notice of those interests. In this the trust
differs from parallel institutions in civil-law jurisdictions as well as
from other institutions of English law. It is not by any means apparent
how the trust in Hunter v. Moss can have had this characteristic.
Suppose Moss, relenting of his generosity to Hunter, executes simul-
taneous legal gifts of all 950 shares in equal portions to two bona fide
transferees. The new owners not being purchasers for value, Hunter's
proprietary interest (as sole beneficiary of a trust of 50 of the shares)
must survive the transfer. But it is impossible to say which of the two
transferees has the trust shares. The "tracing" rules, developed for the
identification of money that has found its way into a mixed fund, are
not to the point, because the shares, unlike money, have an earmark:
each has a number by which it retains its identity in any holding of
which it forms part. H's shares are not "mixed" so as to be potentially
traceable; he must fail in any action against the new owners because
he cannot prove which of the shares are his. H's proprietary interest is
illusory. It cannot be sufficient to say that he could be, or could have
been, given a definite proprietary interest on application to the court.
Views may differ on constructive trusts and mutual wills, but it has
surely never previously been suggested that the beneficiary of an
express trust has no real interest until a court order. H's interest in 50
unidentified shares cannot have been that of a beneficiary of a trust.

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 450 The Cambridge Law Journal [1994]

The decision here noted may be compared with that of the Privy
Council in Re Goldcorp Exchange Ltd. [1994] 3 W.L.R. 199 (see p. 443
above). There, one of the claims was that on purchase of unascertained
bullion, title to an appropriate portion of the seller's holding of bullion
passed to the buyer. Giving the advice of the Board, Lord Mustill
cited Blackburn, writing in 1845, that it was contrary to "the nature
of things" for property to pass in unascertained goods, even if the sale
is from stock: "the parties did not intend to transfer the property in
one portion of the stock more than in another, and the law, which
gives effect to their intention, does not transfer the property in any
individual portion". Lord Mustill continued by saying that "the same
conclusion applies, and for the same reason, to any argument that a
title in equity was created by the sale". This view must surely be
preferable to that adopted in Hunter v. Moss. My claim to ownership,
whether legal or beneficial, is a nonsense unless I can say what it is
that I own and, in consequence, that you don't.

MARK OCKELTON

TARGETING TRUSTEESLIABILITY FOR BREACH OF TRUST

So often, a trustee's lot is not a happy one; were confirmation needed,

it is provided by two recent cases, Target Holdings Ltd. v. Red/ems
[1994] 1 W.L.R. 1089 and Jaffrayv. Marshall [1993] 1 W.L.R. 1285.
Target proposed to lend on the security of land; Redferns were its
solicitors. Target transferred to Redferns' client account the loan
money, which Redferns was to disburse when the firm received duly
executed security documentation. In fact, the money was paid over by
Redferns before receipt of the documents, though in due course
charges over the land were received. Subsequently, Target enforced its
security; the land was sold, but the proceeds were insufficient to meet
the sums secured on the land. The mortgagor was worthless, and the
estate agent, which had overvalued the land, was in liquidation. Whom
should Target sue? Its solicitors, of course.
Target claimed that Redferns had paid away the money in its client
account (held on trust for Target) in breach of trust, and that the firm
should restore the trust fund to its state before the breach. Redferns
admitted the breach, but argued it was not a cause of Target's loss, as
that loss would have been suffered even if the firm had paid the money
from its client account at the proper time. Target applied for summary
judgment.
Ralph Gibson L.J. thought that, in certain cases, a payment in
breach of trust might not be regarded as a cause of loss if payment in

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