JUDGMENTBY: THOMAS, C J, BURTON, J, HOWES, J

THOMAS, C J 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 Limited. 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 Limited. And Perak Tin Limited also sub-leased the same mining properties to a person who has been referred to as the tributor.

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 sublessor, 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 Limited 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-lessees 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 Limited received information 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 clause 1 of your sub-sub-lease Agreement dated

14th day of May, 1924, which renders the same liable to cancellation.

If you agree with the statement of account of the Secretaries of Papan

Tin Limited 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 June 17th, 1933.

On the 29th of June, 1933 the appellant returned the cheque, and stated his intention to commence proceedings in the Wardens Court for the cancellation of the sub-sub-lease to Perak Tin Limited. The respondent replied on the 30th 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 Wardens 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 the 17th of June, 1933. It was however objected that the appellant had waived

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