Scottish Court of Session Decisions

Lord Kinloch repelled Mrs Muir's claim, holding that donation could not be proved by parole evidence. The mere possession of a deposit receipt may, his Lordship observed, “evidence nothing but an unceremonious investigation of the repositories of the deceased.” The only other evidence which she offered was that of herself and of parties who had heard the deceased anterior to the donation express his intention to make it, and, after it was made, state that he had done so. This evidence, the Lord Ordinary thought was incompetent. Mrs Muir reclaimed, and contended that although donation was not to be presumed, there was no absolute rule in the law of Scotland that parole evidence of it was incompetent. She founded on the case of the National Bank v. Bryce, where the Court recently allowed a proof before answer in regard to an alleged donation of a bank cheque.

After hearing Mr Hall, the Court asked the other side if they objected to a proof before answer. This was consented to, and the Court recalled the Lord Ordinary's interlocutor and allowed a proof.