majority"> Mellen C. J.

delivered the opinion of the Court.

The questions presented on the exceptions are, whether the copy of the deed from Nolle to Wyer was liable to impeachment in the manner and for the reasons urged by the plaintiff’s counsel; and whether the instructions of the judge to the jury were correct. It is contended that the conveyance, if made without any consideration, and merely in trust for the benefit of Noble, would, if admitted to the jury, have been evidence, tending to prove malice in the defendant. The deed was made more than two years before the alleged malicious action was commenced ; and would on that ground seem to have no possible tendency to prove any thing in the cause. But the proof offered was parol only; and of course was improper to shew a trust, when the deed was in the usual form, conveying the land to the grantee in fee, to the use of him and his heirs. Northampton Bank v. Whiting, 12 Mass. 104; Jenny v. Alden, ib. 373; Storer v. Batson, 8 Mass. 431; Flint v. Sheldon, 13 Mass. 443.

It was not alleged that it was fraudulently made, but only without consideration. But what was that to the purpose ? The deed would have passed the estate to Wyer, as against all persons but the creditors of Noble. This objection cannot be sustained.

The next is, that the purchase of Bradford’s judgment of Kinsman, was in itself an offence, and amounted to champerty. The answer is that an offence cannot be committed without an improper intention and the jury, under the instruction of the court, have decided that the suit was fairly instituted to recover the amount of the judgment,' under a purchase, and an authority supposed to be sufficient, and without knowledge of the plaintiff’s death ; and that he acted in the transaction without any malice, and with the intention of securing the demand. This objection seems to be completely settled by the' verdict ; and in this view of the subject the exceptions must be overruled ; because, in order to support the action, there must have been a want of probable cause, and also malice. It is urged that the instructions were incorrect, because the judge did not state the law to the jury that from the want of probable cause, malice may be presumed. He did state that both must concur; and such is the law. *289If any more explicit instruction was desired it should have been requested; and then, if improperly withheld, there would be good ground of exception. But though the judge did, with some appearance of doubt, instruct the jury that there 'was not probable cause; yet we are all, upon consideration of the facts, inclined to a different .opinion. The debt due from Plummer to Bradford was certain and undisputed'; there was a good cause of action, by some person, on that judgment; and though the action brought in the name of Bradford after his death, could not be maintained, yet his death was not then known. Noble believed there was a good cause to maintain that action, and was probably led to that belief by the conversation and belief of Kinsman.

On the whole, in any view of the case, our opinion is that the exceptions must be overruled.

Judgment on the verdict.

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