¶1On the merits.
¶2The plaintiff is the testamentary executor of his deceased wife, and also the usufructuary of her estate under the express appointment of her will. The defendant is his creditor, and has a judgment against him individually, upon which a writ of fieri facias issued, and his right of usufruct was seized to satisfy it.
¶3The executor had advertised two improved lots on Esplanade Street for sale, for the purpose of paying the debts of the succession, and this sale was to take place on 23rd of October, 1875. The defendant seized the plaintiff’s usufruct of these two lots, and that sale was advertised for the 8th of the following month. The succession sale was made on the 23rd of October, and the property *40»vas adjudicated at nine thousand dollars. This suit was instituted Htr the double purpose oí recovering damages of Mrs. Clancy for the HPjury to the succession caused by her seizure of the usufruct of plaintiff, which is alleged to have alarmed bidders, and prevented active competition at the sale, and also to inhibit her from proceeding further in her contemplated sale. The injunction was dissolved by the lower court with damages.
¶4There can be no question that the seizure of plaintiffs usufruct in the estate of his wife, or in any part thereof, was legal. Every species of usufruct is liable to seizure except the single case of that given to the parents, during the marriage, in the estate of a minor child. Davis v. Carroll, 11 Annual, 705. We do not understand the plaintiff to controvert this proposition, but he alleges, there can be no usufruct unless there is an estate, or a thing or right which is the subject of the usufruct, and until the debts were paid, and the succession settled, it could not be known whether the property was not, or would not be, consumed.
¶5To say that there can be no usufruct of a thing unless the thing exists is but to announce a truism. And if the payment of the succession debts had exhausted all its property and assets, then the seizure and sale of the plaintiff's usufruct would have been barren of result, except to occasion the defendant the additional loss of the expenses incurred in provoking it. The suit is, however, for loss to tlie succession, but it cannot be contended that the defendant was not pursuing her legal rights and in a legal manner, and we cannot sanction a claim for damages, even if they were less remote and supposititious than is disclosed by the testimony in this case.
¶6But the plaintiff appears to have confounded his representative and his individual capacities, and to have overlooked the fact that he has enjoined in the capacity of executor a proposed sale of his individual property. The property of the succession in the lots was divested by tlie sale of the 23rd of October. Neither it nor its representative had any further interest in that property. But on the 5th of November, the representative of the succession sued out this injunction to prevent the sale, not of any succession property or right, but of the individual and personal right of usufruct of Philip Marsoudet, which was advertised for the 8th of that month.
¶7*41This is an abuse of the right of injunction for which the lower court awarded ten per centum damages.
¶8Judgment affirmed.