Conversion—Personal Property Consisting op Orange Trees Taken Under Judgment—Taking and Possession not Unlawful.—Where, pursuant to a judgment for the plaintiff, in an action for the specific performance of a contract to sell orange trees, which judgment, though appealed from was not stayed, the trees were delivered to the plaintiff by a receiver appointed by the court, the taking of the trees by the plaintiff and their possession by him was lawful.

Id.—Title to Property Pending Appeal Contingent.—In such case the plaintiff’s right to the possession of the trees pending the appeal was contingent upon the determination of the case, and liable to extinguishment by a reversal of the judgment.

Id.—Reversal op Judgment—Restitution op Property—Trusts—Liability por Failure to Restore.—On reversal of the judgment in such case the plaintiff is bound to restore and account for the property, and the rule governing the extent of his liability is the same as that applicable to trustees, who are required to conduct the affairs of the trust as an ordinarily prudent man would conduct his own, being chargeable for no more than they have received, nor responsible for losses that may arise when acting in good faith and with common skill and prudence.

Id.—Planting Trees—Changing Character op Trees prom Personal to Real Property—Inability to Make Restitution.—Where, pending appeal from the judgment in such a case, the plaintiff planted the trees in his orchard as part thereof, he changed their character from personal property as nursery stock to a part of his real property, and thereby placed it beyond his power to make restitution, and appropriated and converted the property to his own use in violation of his duty as a trustee.

Id.—Loss op Fruit Trees by Death Apter Planting—Inability to Make Restitution—Evidence—Burden op Showing Good Faith and Diligence in Care.—Where the plaintiff to whom fruit trees are delivered under a judgment which is not stayed on appeal plants them in his orchard, and they die pending the appeal, and he is for 'that reason unable to make restitution on a reversal of the judgment, he must, in order to escape liability for the conversion, show that his inability to restore the property was not due to want of good faith or to lack of common skill, prudence, and diligence in the care thereof.

Id.—Measure op Damages.—In an action for the conversion of orange trees under such circumstances where the verdict is for the plaintiff, the measure of damages is the value of the trees at the time of the conversion, the fact that the trees died after they were planted by the defendant being immaterial, unless such loss could be attributed to some cause existing prior to the conversion and for which the defendant was not liable.

Id.—Instructions — Erroneous but Harmless Instruction. — In such case the court erred in instructing the jury that in ascertaining the value of the trees they were governed by the evidence as to value as of the time of the taking, but since the only evidence as to the time of the conversion by planting indicated that they were taken about June 1st', and were permanently set in the ground about the same time, the error could not have been prejudicial.