Thomas CJ:

The appellant John Charles Baumann, is the holder of a registered sub-lease No. 129/22 of certain mining leases. The lessor to him was a company known as Papan Tin Ltd. This company held only a lease of the same mining leases.

The appellant in turn sub-leased the same mining properties to a company called Perak Tin Ltd. And Perak Tin Ltd. also sub-leased the same mining properties to a person who has been referred to as the tributer.

All these sub-leases were held practically on identical terms as the sub-lease from appellant to respondent, which included amongst others the following:-

(1) That the sub-lessee shall pay to the sub- lessor, or to the duly appointed agent, tribute upon all ore removed from the said land at the rate of eight per cent of all tin ore won when less than 500 coolies or their equivalent in horse power are employed, provided that the tribute shall be reduced to six per cent on all ore won when 500 coolies or over or their equivalent horse Power are at work on the land-such tribute shall be paid to the Straits Trading Company Ltd. whose receipt for the same shall be a complete discharge to the said sub-lessee. For the purposes of this sub-lease one horse power shall be considered the equivalent of eight coolies.

(2) That the said tribute shall be paid immediately after each sale of ore of and at which sales the sub-lessor shall have full notice and the right to be present.

(3) That the sub-lessee shall be liable upon suit before the Warden or any Court to pay to the sub-lessor the sum of dollars one hundred as a penalty for each and every breach of the conditions above set out which he may commit.

(4) That this sub-lease shall be liable to cancellation at any time by the Warden or the Court upon proof:

(i) that the sub-sub-leases have failed to pay the sub-sub-lessor the amount of any moneys which they are by the terms of this sub-lease bound to pay for a period of one month from the date at which such Payment became due.

In June, 1933 Papan Tin Ltd. received in. formation that an engine had been removed from the mine, and that consequently tribute should have been paid at the rate of eight per cent instead of six per cent. A letter was sent to the appellant asking for a cheque for dollars one hundred and seventeen and cents forty the difference in the tribute due, and for the future payment of tribute at the higher rate. A copy of this letter was forwarded by the appellant to the respondent Company, dated the 15th June 1933. In that letter the following paragraphs appear:

If the allegations contained in that letter are correct, they constitute a breach of cl 1 of your sub-sub-lease Agreement dated 14 May 1924, which renders the same liable to cancellation.

If You agree with the statement of account of the Secretaries of Papan Tin Ltd. please send me a cheque by return for the amount claimed by them, $117.40.

Should there be further sums due on account of tribute under the terms of the sub-sub-lease agreement, will you please adjust the matter without delay.

In reply the respondent forwarded a cheque for $117.40 in a letter dated 17 June 1933.

On 29 June 1933 the appellant returned the cheque, and stated his intention to commence proceedings in the Warden's Court for the cancellation of the subsub-lease to Perak Tin Ltd. The respondent replied on 30 June 1933 that the failure to pay at the higher rate was entirely due to an oversight. Subsequently the respondent forwarded a further cheque for $30.10. It would seem that this sum also was returned.

Subsequently proceedings were instituted in the Warden's Court. At that hearing it was admitted by the respondent that tribute at a higher rate than six per cent had not been tendered prior to 17 June 1933. It was however objected that the appellant had waived his right to insist on tribute being paid. The Warden found that there had been a breach of cl 1, and that the sub-lease was liable to cancellation under cause 8 (i) of t