
    M. de SOUZA v. M. SMITH, Defendant, and W. H. PAINE, Garnishee.
    Exceptions from Circuit Court, Eirst Circuit.
    Submitted July 1, 1897.
    Decided October 20, 1897.
    Erear and Whiting, J.J., and Antone Eosa, Esq., of the Bar, in place of Judd, C.J., absent.
    Wages payable by a tramway company to a driver only on condition that the driver return a larger amount deposited with him for use in making change with passengers, are not subject to garnishment.
   OPINION OP THE COURT BY

FREAR, J.

This case comes here on plaintiff’s exceptions to the judgment of the Circuit Court discharging the garnishee, that court having tried the case jury waived on the garnishee’s appeal from the District Court.

The garnishee was manager of the Hawaiian Tramways Company. The defendant was driver on one of the cars of the company. The driver had in his possession $25 of the company’s money for use in making change with passengers. The company owed the driver $12 wages. The only question now raised is whether the company could be held as garnishee in respect of the $12 owed the driver. The question whether the company, instead of its manager, should have been made garnishee, is waived.

The plaintiff argues that, as the defendant held the $25 as bailee and claimed the $12 in his own right, the garnishee could have no right of set-off against the defendant and therefore conld not set np that defense against the plaintiff. The garnishee, however, relies, not on set-off, but on a claim that by the terms of the contract between the garnishee and the defendant, the wages were payable only upon the return of the $25, in other words, that whether the garnishee owed the defendant anything depended upon the contingency that the defendant should return the money entrusted to him. It is well established that a debt subject to a contingency, and not due or to become due by the mere lapse of time is not subject to garnishment. See Fellows v. Smith, 131 Mass. 363. The question of difficulty in this case is whether the evidence is sufficient to establish the contract relied on. The evidence is not satisfactory, but, bearing in mind that the finding of the trial Judge must be treated as a verdict of a jury, we are of the opinion that there was sufficient evidence to sustain it. Specific findings of law and fact were not made or requested.

Ay G. Correa for plaintiff.

P. Neumann for garnishee.

The exception is overruled.  