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In an action of constitution of the alleged debt afterwards brought by the Fife Bank, Swayne was assoilzied by the Lord Ordinary and the Court.
Swayne thereupon raised an action for damages against the Fife Bank, on account of wrongous apprehension, &c.
In defence, it was stated, that the proceedings were adopted on fair and reasonable grounds.
Malice was alleged in the summons, but omitted in the condescendence. The relevancy of the condescendence in this respect having been objected to, the Lord Ordinary pronounced this interlocutor:
‘The Lord Ordinary having heard parties very fully, on the motion of the defender to have the condescendence for the pursuer found not relevant, in respect that the averment of malice contained in the summons is omitted in the said condescendence, and having made avisandum, finds that it is not necessary, in this case, to have an allegation of express malice on the record; and therefore refuses the motion of the defender; and ordains the parties to proceed with the preparation of the cause.’
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