Cook

(after stating the facts as above).

The first contention of plaintiff is that the garnishee’s motion to dismiss the proceedings upon which the judgment is based at the close of plaintiff’s case was tantamount to a motion for a directed verdict, and, the garnishee not having rested its case, the motion should have been denied. The action of the District Court is fully sustained by the case of Bunt v. Sierra Butte Gold Mining Co., 138 U.S. 483 , 11 S.Ct. 464 , 34 L.Ed. 1031 , which was an action to recover for personal injuries. There the defendant moved at the close of the plaintiff’s case for a directed verdict in its favor, which was granted, and the judgment was affirmed, it being expressly declared that the court rightly directed a verdict for the defendant.

The next contention is that the garnishee having tendered the issue nulla bona, without having pleaded matter in avoidance, it will not be heard to set up the right of the Howards to the proceeds of the gold dust, the subject of the controversy. This contention proceeds upon the hypothesis that Robinson first sold the gold dust to the bank, and that the bank received the proceeds to the credit of Robinson, and that…