JUDGES: Terry, C. J. Baldwin, J., Field, J., concurring.

         OPINION

          TERRY, Judge

         The judgment in replevin constitutes no bar to this action, unless it be shown that it has been satisfied. The cause of action was in both cases the same, but the object was essentially different. In the one case the plaintiff sought to recover a specific personal chattel, which was wrongfully detained; in the other, the value of such chattel, when, owing to the acts of defendants, it was not in his power to procure a return.

         " Where the cause and object of both actions are the same, a judgment in the prior bars the subsequent suit. When the cause or object of the actions are different, though the point in dispute is the same in both, the prior judgment is no bar to the subsequent action, but the verdict is matter of evidence to prove the point." (Swift's Ev. 17.)

         Thus, in an action of ejectment, the value of the use and occupation may be recovered, but a judgment in ejectment, when no claim for use and occupation is made, is no bar to an action to recover for such use, though the judgment in ejectment is conclusive evidence in the second suit. (13 Johns. 447.)

         So it has been decided that when, in an action of replevin, no damages were recovered for detention of the property, such damages might be recovered in a subsequent suit. (33 Maine, 382.) The judgment of a Court of competent jurisdiction, directly upon a particular point, is, as between the parties, conclusive in relation to such point, though the purpose and subject-matter of the two suits be different; and hence a judgment may not only be evidence, but conclusive evidence, and still be no bar to a second action. (4 Phil. Ev. Note 12.)

         The judgment in the action of replevin was, as between the parties, conclusive evidence of the plaintiff's title to the chattel in question, and it only remained for the Court, in this action, to determine its value.

         The defendant objects that under our statute there should have been a finding of the value in the replevin suit, and an alternative judgment for the return of the property or the payment of its value. This would have been necessary to enable the plaintiff to recover against the sureties on the replevin bond, but the failure to do so cannot affect his rights as to the defendants. There are many kinds of property which have a peculiar value in the eye of the owner far beyond their intrinsic worth. In an action for the possession of such property, the plaintiff would prefer to lose his right to proceed against the sureties rather than enter an alternative judgment, the effect of which might be to enable the defendants to retain the property by paying its estimated value. In all such cases, according to the argument of the appellants, if the defendants should by their own act render restitution impossible, the plaintiff could have no remedy. The position is, in our opinion, opposed to principle, and would seem to be entirely unsupported by authority, as no case has been cited which sustains it.

         The appeal is without merit, and the judgment is affirmed, with twenty per cent. damages for a vexatious appeal.

         CONCUR

          BALDWIN; FIELD

         We concur:

         Baldwin, J.

         Field, J.