Undergraduate LAW seen exam questions - module title : Title and security - Essay Example

Equity adopts a wider scope and has developed to an extent where property such as money can be traced even where there is mixed funds. Traced funds can be awarded to the Plaintiff. Common law is capable of tracing the legal ownership of property but is limited to being able to do this only where there have been clean substitutions Smith, The Law of Tracing, (1997) pp 162-174 (1815) 3 M & S 562 One of the main cases that established the ability to trace property is Taylor v Plummer. In this case total property was given to Plaintiff.

But subsequent cases have held that common law property cannot trace money that has mixed funds, Diplock (1948) Ch.65CA. In this case only those assets that could be traced were returned to Plaintiffs. It would appear from the cases above that common law would not be able to assist the parties but that they will succeed under equity. The question then that would arise is whether they would be entitled to equal shares of the money or whether it would be distributed according to the amount taken from each.

In the above case the Trace is clear. Both shares of X C and Y Co have been purchased out of money received from Soon Ltd and Adverb plc. The gift of Furniture can also be traced clearly. Most cases support the view that tracing operates by descent of title. The money received from Soon Ltd., can be justifiably said to belong to Adverb plc as this would have been their discount or earning, had Bob not taken this wrongfully as illegal commission. Hence all these shares now valued at 17670 are likely to be given to Adverb plc.

The Gift of Furniture was out of misappropriated funds and has to be returned. Hence the Furniture now valued at 1000 will be turned over to Adverb plc. This leaves a balance payable 11330 to Adverb plc and 1924 to the Cricket Club. Since Bob is the treasurer of the Club he is in a fiduciary capacity and therefore the club has a first claim