Opinion

Upon the trial below the court nonsuited the plaintiff, and the refusal of the court to take the nonsuit off is the only matter for our consideration. The facts may be thus briefly stated:

The defendant, Alfred M. Fuller, had a judgment for a large amount against his brother James Fuller. Upon this judgment he proceeded under the act of assembly, as pointed out in Early’s App., 89 Pa. 411, to attach 1,300 shares of the stock of the Algonquin Company, standing in the name of Belle C. Fuller, trustee. The said Belle C. Fuller was the wife of the defendant in the attachment execution. The writ was served upon the Algonquin Company as one of the garnishees, but was returned “ nihil habet ” as to the said Belle C. Fuller. The latter, however, appeared to the suit, and the trial resulted in a verdict and judgment in her favor. She then commenced this suit, a common-law action on the case, against the attaching creditor of her husband, to recover damages for the laying of the attachment. She alleges that the attachment was maliciously issued; that the attaching creditor knew the stock belonged to her, and not to her husband; that the effect of said attachment was to prevent the sale and transfer thereof, and that pending said attachment the stock had depreciated greatly in value.

*133It may be that for a malicious abuse of legal process a party injured thereby may have redress by a common-law action. There is nothing in this case, however, to indicate a malicious abuse of legal process. It was not denied that this stock had originally been issued to James Fuller, and had been transferred by him to his wife. It is true it stood in her name as trustee. But it does not appear, at least the certificate did not show, for whom she was trustee. The addition of the word “ trustee ” to her name, under such circumstances, possesses little significance. Having acquired title through her husband, prima facie the stock belonged to him. The burden was upon her to show that it belonged to her. Under such circumstances, it was entirely proper for a judgment creditor of her husband to test her title. This he did by using the process given bj' act of assembly for that purpose. It is not an uncommon thing for debtors in failing circumstances to seek to shelter themselves behind their wives. It would add greatly to the immunity of such persons, if a legal investigation of the title of the wife could only be undertaken under the penalty of a suit for damages if unsuccessful.

If the plaintiff’s stock has depreciated, it is her misfortune. The defendant did nothing to produce such result. It was not taken out of her possession. Nor can it be truly said the attachment prevented its being sold. Upon a proper application to the court below, we have little doubt an order would have been made for its sale, the proceeds to await the result of the attachment. This is constantly done in the case of perishable property. And a motion to dissolve might not have been unsuccessful, if made upon proper proof that the stock was a part of her separate estate and bought with -her own money.

Judgment affirmed.