Scottish Court of Session Decisions

On 4th September 1906 William Mackison, civil engineer and architect, Dundee, and formerly burgh surveyor, brought an action against the Magistrates of Dundee in which he sought decree for £15,000 for work done by him outwith the scope of his duties as burgh surveyor.

Mr Mackison having died on 24th November 1906, his trustees were sisted as pursuers.

The circumstances in which the action was raised are fully set forth in the opinions ( infra) of Lords Low and Dundas.

On 11th January 1908 the Lord Ordinary

( Guthrie), after a proof, the import of which sufficiently appears from his Lordship's opinion ( infra), assoilzied the defenders.

Opinion.—This action was instituted by the late Mr William Mackison, who was Burgh Surveyor of Police for Dundee from 1868 to 1906, and is now insisted in by his trustees. Mr Mackison died on 24th November 1906, before the proof was led. The summons concludes for a sum of £15,000. But that sum does not represent what the late pursuer estimated as the full measure of his rights. According to Condescendence XII, he was entitled to £49,601, made up of £3800 for arrears of salary as sanitary inspector and £45,801 for alleged extra work done in the burgh surveyor's department but said not to be covered by the burgh surveyor's salary, this latter sum of £45,801 representing ‘the ordinary charges made by engineers and architects for similar work.' Although maintaining legal right to the above-mentioned sum of £49,601, the late pursuer restricted his claim in the summons to £15,000, but on what basis his son, Mr J. W. Mackison, is unable to explain. Mr Carter, C.E., with whom Mr Bennett, C.E., substantially concurred, priced the claim for extra work at £19,584, which being added to the arrears of sanitary inspector's salary makes a total now claimed to be legally due of £23,384, as against the above sum of £49,601, subject to a certain deduction from the claim for extra work, to be afterwards referred to.

I.—Arrears of salary as Sanitary Inspector, from date of appointment on 16th July 1868 to date of summons, amounting to £3800.

The defenders admit that the late pursuer was appointed on 16th July 1868 sanitary inspector for the United Parish of Liff and Benvie, within which the burgh of Dundee is situated; that the said appointment was never recalled; and that in some of the defenders' annual Government returns Mr Mackison was entered as one of the sanitary inspectors.

Prima facie, therefore, apart from amount, the late pursuer made a good claim under this head, which it lay on the defenders to displace. In my opinion they have done so. They have proved (1) that, as in a question between the Police Commissoners and Mr Mackison, his salary for the two offices of police surveyor and sanitary inspector was fixed at £400, which salary, or an increased amount, was regularly thereafter paid to him; and (2) that no work as sanitary inspector separate from his work as burgh surveyor was ever done by Mr Mackison, the whole separate duties having been discharged with a separate staff, and separate books, in a separate office, by Mr Thomas Kinnear, who had been inspector of nuisances from 1867, and who was also appointed sanitary inspector for the same area within five months of the late pursuer's appointment, and who was regularly paid a salary therefor. The late pursuer's appointment was always treated, and was in fact, nominal. With the arrangements in 1868 between the Police

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Commissioners, the defenders' predecessors, and the Board of Supervision, under which not a separate salary but the proportion of the late pursuer's total salary payable in respect of his appointment as sanitary inspector was fixed at £100 per annum, the late pursuer had no concern. If he ever knew of that arrangement he must also have known that notwithstanding thereof only £25 was entered in the burgh treasurer's books annually between 1868 and 1875 under this head, reduced after 1891 to £5 annually, which nominal sum of £5 has been regularly entered in the annual returns made to the Local Government Board since 1891 as Mr Mackison's salary as sanitary inspector. The nominal nature of Mr Mackison's appointment is demonstrated by the fact that no claim or hint of a claim under this head was ever made by him until the questions arose which led to his dismissal as burgh surveyor. The claim if it existed was liquid and instantly provable. There was no reason why Mr Mackison should not have insisted in it if it was a good claim. It is an afterthought, due probably not to Mr Mackison but to his advisers.

II.—Claim for alleged extra work done in the Burgh Surveyor's Department, but said not to be covered by the Burgh Surveyor's salary, amounting to £45,801.

The onus of proving this claim seems to me to rest throughout on the pursuers.

In the pursuers' favour these points are proved— First, Mr Mackison worked personally and supervised his subordinates to an extent in excess of what was contemplated at the time of his appointment. During his term of office the municipal area was doubled; so was the length of the sewers; while the population was almost doubled, and the assessable rental was more than doubled. Second, from time to time, prior to 1894, he indicated to the Police Commissioners, the defenders' predecessors, or to committees of their number, or to individual members and officials, and, subsequently to 1894, to the defenders or to committees of their number, or to individual members and officials, the existence of a duty on the part of both bodies to remunerate him for the extra work now in question, or some of it, in addition to his salary as burgh surveyor. Third, both among members of the Police Commission prior to 1894, and among members of the Town Council since 1894, there has existed throughout a feeling that Mr Mackison ought to receive some extra payment in addition to his salary.

On the other hand, there are striking considerations against the pursuers' case as stated on record, which, in my opinion, they have failed to meet:— In the first place, they claim for services over tinrty-eight years—from 18th May 1868, when Mr Mackison was appointed Burgh Surveyor of Police for Dundee, to 19th July 1906, when his office ended—the earliest items being thus within two years of extinction by the long negative prescription. Mr Mackison was not a man of private means; his salary did not exceed £500; and the burgh of Dundee has never been in financial difficulties. In the second place, no interest is claimed on the sum said to have been payable from time to time to Mr Mackison for services rendered beyond the duties covered by his salary as burgh engineer, thus resulting, if the claim now made is a good one, in a loss to his estate of at least as large a sum as that for which the defenders are said to be liable. In the third place, the capital sum claimed from the defenders has been arbitrarily restricted to £15,000 out of the £49,601 (including the arrears of Sanitary Inspector's salary) alleged in the summons and memorandum to be due. In the fourth place, while it is alleged that Mr Mackison from time to time brought the existence of the present claim for the extra work now specified, or some of it, under the notice of the defenders and their predecessors, it is admitted that he never tabled any complete priced demand, either slump or detailed, until the present action was brought. Mr J. W. Mackison deponed—‘Unless it be 1871 and 1878, Mr Mackison nevermade a money claim against the town for these specific works that are mentioned here.’ Even when the memorandum was submitted to the defenders in 1906 no prices were given. And any particular note of charges made up by Mr Mackison seems to have been on a different basis from that on which the claim is now made. For instance, his note referring to the 1878 bill amounts to £721,8s.; and it is stated in the memorandum that if the fees there charged ‘had been priced according to the ordinary professional scale, they would have been several times the amount charged.’ Yet under this head Mr Carter only allows £200, after deduction of one-third for use of the office staff.

The basis of the pursuer's claim is thus stated in Condescendence 8—‘In particular, the pursuer was employed by the defenders and their predecessors as their engineer in regard to the following Bills and Acts, and for the execution of the works thereby authorised, and for the other works after referred to, on the footing and agreement in every case that he was to be paid the usual professional charges, under deduction of office charges and expenses. The pursuer accepted said employment and acted as such engineer in connection with said bills and work, and did all the work in question. No part of the said work fell within the scope of the pursuer's duties as surveyor of police or sanitary inspector.’ And plea 1 is as follows:—‘The defenders and their predecessors having employed the pursuer to act as their Parliamentary engineer, and as their engineer, architect, and surveyor for the execution of the works authorised by their own special Acts of Parliament, and otherwise on the footing and agreement that he was to be paid, all as condescended on, are bound to pay the pursuer in respect of the work done and services thus rendered by him, and decree should be pronounced in terms of the conclusion of the summons with expenses.’

No case of bar is made in respect of I Mr Mackison having been induced, fraudulently

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or otherwise, to perform the services in question on the faith that he would be remunerated for doing so apart from his salary. Had this been the basis of claim, I presume the amount would have been calculated on quantum meruit. But no materials have been put before me for an estimate on that basis. From beginning to end Mr Mackison never kept any details of the alleged extra work done by him.

As to the mode of estimating the pursuer's claim, it was made up by Mr Mackison, and has been spoken to by his son and Mr Carter and Mr Bennett, apart from charges of supervision and maintenance, on the footing of a percentage on cost, as if Mr Mackison had been an outside engineer, subject to deduction of one-third on account of the saving to him through the employment of the town's official staff. It may be noted that although Mr Carter and Mr Bennett proceed, like the memorandum, on a percentage on cost, the percentages are very different. For instance, Mr Mackison's claim for £3000 is cut down by Mr Carter and Mr Bennett to £350. Again, as to the proper deduction on account of use of office staff, Messrs Carter and Bennet have only allowed one-third, but Mr J. W. Mackison says his father counted it at 40 per cent.

The pursuers' case then is ( a) express employment by the defenders and their predecessors to do the work in question for remuneration separate from his salary as burgh engineer; ( b) such remuneration to be calculated on the same footing as if Mr Mackison had been an outside engineer; but ( c) such remuneration so calculated to be subject to deduction of one-third of an outside engineer's charges on account of Mr Mackison's use of the official staff and premises.

In my opinion the pursuers have failed to establish ( a), ( b), and ( c) or any of them. I come to this conclusion not on a balance of evidence but in the absence of any evidence. No attempt has been made to say when—in 1868 for all future extra work, or from time to time; or how—in writing or verbally or partly both; or by whom—the defenders and their predecessors as corporate bodies, or by committees, or by individuals representing them—any such agreement or agreements were entered into. Nor has any attempt been made to define the standard according to which the parties agreed that work should be considered ordinary or extra-ordinary. It appears from the evidence of Mr J. W. Mackison that his father was ultimately guided in making the distinction which is the basis of the memorandum by the views of his law agent Mr Stewart and other advisers. See the case of Latham, 4 Macph. 1084.

The pursuers' counsel stated that he did not found any part of his case of agreement on the terms of the minute dated 28th April 1868 containing his appointment; and he admitted that there was no document instructing an agreement between Mr Mackison and his employers as to extra payment for extra work, and no evidence of any meeting between Mr Mackison and his employers at which any such agreement was entered into. The letter of 27th March 1868, founded on in Cond. 2, was not addressed to Mr Mackison or ever communicated to him. It was further admitted that the minuted instructions by the defenders to Mr Mackison for the alleged extra Parliamentary and other work did not differ substantially in their modes of expression from instructions given for ordinary work.

In these circumstances it would be sufficient to hold that the pursuers have failed to prove the only case averred and pled by them on record.

But it is right that I should consider and express an opinion upon the case on which in the end the pursuers relied. Their contention is that in the circumstances disclosed by the evidence, written and oral, such an agreement as they have averred must be implied in law, because the work claimed for as extra was essentially different both in kind and degree from the work which Mr Mackison was engaged to do and which was covered by his salary.

In the case of a servant hired for certain work, who in addition does other and unrelated work, it may be possible, by that circumstance alone or by that circumstance taken along with others, to rear up an implication for separate and additional remuneration, which I suppose would be calculated on the basis, not as here, of ordinary professional charges, but of quantum meruit, for which, as I have said, there is no material. But in this case I am unable to discover any work in the office or on the ground, parliamentary or local, done by Mr Mackison as an engineer, an architect, or a surveyor, which had not a direct relation to his admittedly official work, and which on his appointment might not reasonably have been anticipated as likely to arise, although it may be not to the extent actually developed. The pursuers have failed to prove what they allege on record, namely, ‘no part of the said work fell within the pursuer's duties as burgh surveyor or sanitary inspector,’ or that the work in question was ‘entirely outwith his duties as surveyor of police or sanitary inspector.’ With the exception of a part of an outfall sewer at Lochee, the whole work founded on related to ground within the area of the burgh of Dundee, and it was all done by Mr Mackison's official staff without outside assistance. The esplanade and swimming baths had been the subject of previous discussions; and the Stobsmuir skating ponds were constructed in the time of Fulton, Mr Mackison's predecessor. The needs and prospects of Dundee were well known to Mr Mackison, who received his professional training there.

The title of the general Act of 1850, under which the burgh was administered until the incorporation or adoption of the Lindsay Act in 1871 and 1882, sufficiently shows the wide range of the legislation under which Dundee was governed at the date of Mr Mackison's appointment. It runs—‘An Act to make more effectual

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provision for regulating the police of towns and populous places in Scotland, and for paving, draining, cleansing, lighting, and improving the same.’ Except in regard to hospitals and tramways, all the subsequent operations authorised and executed in Mr Mackison's time were foreshadowed, if not specifically dealt with, in the Act of 1850, and that Act, by section 327, authorised parliamentary applications. The Dundee Roads and Streets Act of 1865 was obtained in the time of Mr Fulton, who was police surveyor from 1853 to 1868. An advance from gas to electricity or from horse trams to electric cars did not involve either a difference in kind or an advance beyond reasonable contemplation in 1868. Mr Mackison must have known on his appointment that sooner or later (indeed, looking to the rapid development and great prosperity of Dundee in 1868, sooner rather than later) Dundee would not be behind other towns in the very schemes of burgh extension, sanitation, removal of slum property, street widening, and provision for the recreation and health of the people which form the subject of Mr Mackison's claim. These schemes were, all of them, of an ordinary municipal type, not involving the social experiments in which Glasgow has so often been in advance of other towns, nor the abnormal advance of Clydebank materially, or, it is said, of Dunfermline intellectually.

But if the alleged extra work done by Mr Mackison cannot be differentiated in kind from the work admittedly covered by his salary, the pursuers found on the undoubted increase in the amount of work in Mr Mackison's department as sufficient basis for his claim. I say Mr Mackison's department, because it does not follow that Mr Mackison's own work was proportionately increased. The defenders admit Mr Mackison's knowledge and ability in all branches of his work, his ceaseless and disinterested devotion to duty, and the uniform success of everything he undertook. But they claim, I think rightly, that they cannot be called on to make extra payments because, as appears from the evidence, he was a slow worker, hyperscrupulous as to details, and unable in many minor matters to delegate his work to others.

I do not say that an implication of an agreement for separate payment may not conceivably arise from mere increase of amount of work, even in a case where the nature of the work is incapable of differentiation from that for which salary is paid. It is sufficient to say that no such question arises here. While the work immensely increased, Mr Mackison obtained not only ample additional staff for the actual execution of the work, but in 1875, in Mr James Thomson, a qualified surveyor, civil engineer, and architect, skilled assistance of the best quality for purposes of supervision. So far as I can see, there was no part of the work which Mr Mackison might not have delegated at any time to Mr Thomson, with safety to the work itself and with satisfaction to his employers. Employers ordering additional work may either increase the salary of the same staff or may increase the staff, and pay the same salary to the old employees. So far as Mr Mackison was concerned the defenders seem to me to have taken the latter course. The burgh surveyer's office staff increased from 3 in 1868 to 18 in 1906. And it is clear that the staff was increased from time to time, as I think Mr Mackison was originally appointed, with a view to avoid calling in outside assistance either in connection with the ordinary or the extraordinary work of the department.

These observations are of course directed to the case made by the pursuers of alleged implication from the circumstances of an agreement for separate employment, with a corresponding obligation to pay at usual professional rates. It will not avail the pursuers merely to prove, as I think they have done, that the circumstances may have warrantably led to the reasonable expectation on Mr Mackison's part of an increase of salary after the last increase in 1873, or of periodical honoraria. The evidence leaves on my mind a regretful impression that Mr Mackison, partly through reluctance to bring matters to an issue (bred of the consciousness that the defenders had in Mr Thomson a servant competent at any time to succeed him in every part of his work, ordinary and extraordinary) and partly through the vague impression of a legal claim undefined in quality and extent, grasped the shadow and missed the substance, which he might have obtained either in the shape of increased salary or honoraria.

Of admissions of legal liability by the defenders I can find no trace. That other officials, like Sir Thomas Thornton, or that Provost Hunter or other individual members of the Council held that Mr Mackison had a legal claim, will not avail. Nor would evidence that all the defenders as a body, and all the other officials, thought that Mr Mackison had an equitable claim to honoraria. As to Sir Thomas Thornton, it seems clear that he thought Mr Mackison underpaid. Indeed, it is said that in connection with the 1871 Act Sir Thomas estimated Mr Mackison's services at £1000, while Mr Carter only estimates them at £500, which, deducting one-third for use of staff and premises, and giving credit for the £100 paid as honorarium, becomes £234. But in any case I cannot imagine that a man of business of the strenuous type of Sir Thomas Thornton, if he believed, as a lawyer, that Mr Mackison had a legal claim against the Town Council, would have been so remiss in his duty to the Council, a shifting body of employers, and to the ratepayers of Dundee, a shifting body of debtors, as to allow such a claim to run on from year to year without the question being brought to an issue while the whole evidence, oral and documentary, was still fresh. I go further. I cannot believe that Mr Mackison ever made it plain to Sir Thomas that he (Mr Mackison), believed he had any such legal right. No one ever associated the policy of drift with Sir Thomas Thornton.

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The pursuers have to prove their case, and their failure to do so is sufficient warrant for absolvitor. But it would not be right to ignore the formidable case made by the defenders.

The defenders' counter case, apart from the points already dealt with, rests on: 1. Their advertisement in 1808, and Mr Mackison's application.

These documents, in their references to the qualifications of an architect, engineer, and surveyor, embrace all the qualifications necessary for the execution of all the work in the pursuer's claim. Yet, according to Mr J. W. Mackison, his father has claimed on the footing that any work involving an architectural design was outside his official duties, and falls to be charged as extra work, his view having been that his official duties were limited to paving, sewerage, and roads.

2. The terms of the pursuer's appointment.

Mr Mackison succeeded Mr Fulton, who did the ordinary duties of his office, and also extra-ordinary work connected with the Act of 1865, as well as preliminary work preparatory to the application for the Act ultimately obtained in 1871. It must be held, in absence of evidence to the contrary, that Mr Fulton neither claimed nor received any extra payment (except possibly by way of honorarium) in addition to his salary, which, beginning at £250, was gradually increased to £400. In these circumstances Mr Mackison was bound, if he meant to take office on a different footing from his predecessor, to have made this plain either in his appointment or in a separate document. So far from the minute of appointment making this plain it seems to me that by it Mr Mackison put his knowledge and skill, so far as relating to all work for which his training had fitted him, and his time at the disposal of his employers. He became bound ‘to devote all his services to the business of the Commissioners’; and he was appointed ‘during the pleasure of the Commissioners of Police, with all the powers and authorities belonging to the office of surveyor, and subject to such conditions and regulations regarding his duties and the mode of performing them as may be made and prescribed by the Commissioners from time to time.’ The case would have been different if he had been asked, and, without any stipulation as to remuneration, had agreed to do, and actually had done or assisted in doing, work in another department, say that of the town treasurer. He could have refused to do such work; and if he had been referred to the terms of his appointment, which bound him to give his whole services to the business of the Commissioners, he could have successfully maintained that the word ‘business’ only meant work akin to that regularly done in his department, and for which he had special training, the business, in short, of an engineer, an architect, or a surveyor. But there was no part of the alleged extra work which he could have refused to do. If, however, he was of opinion that there was any part of the work in this position he had ample opportunity to bring his view under the notice of his employers by refusing to do the work without a special antecedent arrangement for separate remuneration. No such antecedent arrangement was ever proposed by him. I may add that neither in the advertisement nor in the minute of appointment is there any reference to the three Acts of 1850, 1856, and 1865, within the scope of which it is said that Mr Mackison's official duties were confined.

3. The terms of Mr Mackison's application for an appointment in Liverpool in 1871, and the testimonials then obtained by him from the Dundee Provost, Bailies, and a number of the chairmen of committees.

By the testimonials dated 22ndand 23rd June 1871, and by the terms of his application, dated 13th September 1871, Mr Mackison would necessarily lead the Liverpool Town Council to believe that he had been discharging in Dundee for his salary all the duties, both ordinary and extra-ordinary, falling to his department, and that he was prepared to do the same in Liverpool. Believing as I do in Mr Mackison's high sense of honour it is facts like these which lead me to question whether, down to near the time of his dismissal, he ever believed that he had, or ever intended to make, a legal claim against the defenders.

4. The extra payments to Mr Mackison on 16th April 1872 and 10th May 1882.

If the terms of Mr Mackison's appointment left his position in regard to extraordinary work in his department uncertain, the question, on the pursuer's own showing, was brought to an issue in 1872. According to the pursuers, Mr Mackison then made a claim of about £1000 for services in connection with the Dundee Police and Improvement Act of 1871, on the footing of legal right, conform to the memorandum, although there is no evidence that that memorandum was ever communicated to the Commissioners. Assume, however, in the pursuers' favour that this communication took place, it was met by an offer on the part of the defenders' predecessors equivalent in law and in fact to a denial of any legal right on his part. A bare refusal to pay might have merely meant that the Police Commissioners did not think Mr Mackison had in point of fact performed any extra-ordinary services. But a proposal to pay honorarium, in response to an application for payment as a legal right, necessarily implied that, while he had performed what might be called in a sense extra services, and while these deserved to be recognised, he had no legal right to payment.

The question having thus sharply arisen.

I cannot reconcile the acceptance by Mr Mackison of £100 in terms of Mr Farquharson's letters of 17th and 19th February 1872, and the receipt of 16th April 1872, and Mr Mackison's own entry in the account, with an adherence by him to the legal claim which he is said to have made, and with an agreement that he should be remunerated as of right for similar future services. On

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the contrary, I regard this transaction as involving an abandonment of any such position, if it was ever taken up, leaving it open for Mr Mackison thereafter to represent, as he unfortunately never did, that if he had been paid an honorarium in connection with the 1871 Act, he should be similarly dealt with in relation to other similar work, and, of course, for the Town Council to reply that the increases of salary in 1873 were meant to come in place of any such payments. The subsequent payment of £50 on 10th May 1882, ‘for special and extra professional services in connection with the construction of the Perth Road Tramways,’ seems open to similar observations.

5. Mr increases of salary in 1873, making his salary £500.

The first of these took place within a few months of the payment of the honorarium of 16th April 1872, in connection with the 1871 Police Act. It is at least suggestive of a recognition by the Police Commissioners that Mr Mackison was now doing more work than contemplated when his original salary was fixed at £400, and of a resolution that, instead of repeating the unsatisfactory, because uncertain, method of honoraria, it would be better to prevent all such questions by an increase of salary. That Mr Mackison's salary was not increased after 1873 was due, I am afraid, to the known existence of a vague claim on his part, undefined in amount and uncertain as to its ground.

6. The fact that in the accounts of the Police Commissioners and of the defenders, made up for purposes of rating and borrowing and for Government returns, their total liability in connection with the various matters dealt with in the memorandum was calculated, in the knowledge of the late pursuer and without adverse comment by him, without reference to the existence of any of the claims now made.

“On the whole matter, I grant absolvitor, with expenses. I negative the existence of any agreement, express or implied, between the late Mr Mackison and the defenders or their predecessors, for payment to him by them or any of them, for any of the alleged extra work detailed on record and in the memorandum. I have indicated my regret that Mr Mackison did not in his own interest bring before the defenders from time to time the large amount of extra work, both in the way of personal initiation and of supervision, entailed on him by the defenders' various schemes for the benefit of Dundee (for which, with the exception of the two sums of £100 and £50, while his office staff were paid for overtime, he received no extra remuneration), with reasonable proposals for increase of salary or for honoraria. I have fully in mind the extent to which assistance was rendered to Mr Mackison from time to time, both in the way of an assistant engineer and skilled subordinates. But while I negative legal obligation on the part of the defenders, I feel strongly the difference between the claim for extra work and that made for arrears of salary as sanitary inspector, which I have held bad both in law and in equity. In a question of fair dealing between man and man, there is much to be said for some parts of the claim for extra work; and the defenders might well consider whether the case is not one for making a substantial allowance to the pursuers in the shape of such an honorarium as I think it clear their predecessors would have given from time to time had the matter been put before them by Mr Mackison timeously in a reasonably detailed form and moderately estimated. If Mr Mackison neither found Dundee brick, nor left it marble, it was in his time, and not a little through his ability and devotion to duty, working as he did, year after year, early and late, often after office hours, and in his short holidays, that the town was brought into its present high state of municipal efficiency.”

The pursuers reclaimed, and argued—The services for which remuneration was claimed were not within the scope of Mr Mackison's employment, and were performed by him on the understanding that he was to receive suitable recompense therefor. The circumstances necessary to make a relevant case of recompense for extra services at the instance of a servant were present here. The case differed from Latham v. Edinburgh and Glasgow Railway Company, July 18,1866, 4 Macph. 1084, 2 S.L.R. 208. and from Mackenzie v. Baird's Trustees, 1907 S.C. 838, 44 S.L.R. 555.

Argued for defenders—Mr Mackison was employed throughout on the one footing, viz., that of a burgh official, and none of the duties he performed were outwith his employment. Increase of business did not necessarily imply increase of pay—Fraser, Master and Servant (3rd ed.), p. 47; Bell v. Drummond, 1790, Peake, 45; Money v. Hannan & Ker, November 19, 1867, 5 S.L.R. 32; Rose v. Earl of Fife, April 25, 1806, 5 Pat. App. 115. To entitle a pursuer in a case of this kind to an issue he must specify three things—(1) the duties for which he was originally engaged, (2) the extra duties performed by him, (3) the agreement to give remuneration for the extra duties, per Lord Deas in Latham v. Edinburgh and Glasgow Railway Company, cit. That test was not satisfied in the present case. When the person employed was already in the service of the employer, he was presumed in law to have rendered the services in respect of his employment. There must therefore be a clear understanding between the parties as to the extra work and extra payment therefor, otherwise there was no contract at all— Mackenzie v. Baird's Trustees, cit. Here there was no antecedent agreement. Honoraria were accepted, and though a claim was made later, it was not pressed. If Mackison meant it to be a legal claim he did not insist on it. His conduct, in short, amounted to waiver.

At advising—