414 VALIDITY OF AN AGREEMENT. 



sirwUon {per Lord EUeuborovfih CJ. in roole v. Emncy). And the 

 Court will, if possible, put such a construction upon it as will effectuate 

 the intention of the parties rather than defeat it. The question then, 

 is. what was the intention of the parties when this instrument was 

 made ? Doubtless they intended to make an instrument which should 

 have some operation ; but did they intend to make a lease, or an agree- 

 ment ? If the former they have not done what they intended, because 

 the lease is void by the statute. The intention of the parties must be 

 collected from the instrument itself. The rule is well explained by 

 Laurence J. in Morgan y. BisscU : 'Where there is an instrument by 

 which it appears that one party is to give possession and the other to 

 take it, that is a lease, unless it can be collected from the instrument 

 itself that it is an agreement only for a lease to be afterwards made.' 

 But it is unnecessary to refer to the cases which are all collected by Sir 

 Robert Comyn in his useful book upon Landlord and Tenant. It is 

 admitted that before the statute this instrument would have been held 

 to be a lease ; and if the true rule be that the intention of the parties 

 as declared by the words of the instrument must govern the construction, 

 it is clear that the parties intended this instrument to operate as a 

 lease. It is void as a lease, and the defendant is therefore entitled to 

 our judgment" (ih.). 



In Parker v. TasweU, by an agreement in writing, a landlord agreed 

 to let a tenant certain lands for ten years at a fixed rent. The tenant, 

 however, was to perform certain acts as "leading," or carrying materials 

 for building and draining, which were to be done by the landlord ; and 

 there were stipulations that new hedges were to be made and planted 

 by the landlord, and that "gates, buildings, &c.,'' were to be left in 

 repair ; also that the landlord reserved to himself all customary rights 

 and reservations, such as liberty to cut and plant timber, search for and 

 work " mines and minerals," &c. The agreement was signed by both 

 parties ; and SImrf V.C. held that, inasmuch as the subject-matters, 

 the term and the rent, were certain, the uncertainties as to the subsi- 

 diary part of the lease, even in the use of the expression " &c.," were 

 not sufficient to prevent the tenant from having specific performance of 

 the agreement, and that the 3rd section of the 8 & !) Vict. c. lOG, which 

 enacts that every lease required by law to be in writing shall be void at 

 law unless made by deed, did not exclude the jurisdiction of the Court 

 in this case. It was held by Lord CMmsford Ch. on appeal, that such 

 agreement, though void at law, under 8 & 9 Vict. c. 106, as a lease, 

 was valid as an agreement, and specific performance of it was decreed, 

 and also that the insertion of "&c.," on some of the terms of the agreement 

 did not produce such uncertainty as to render the agreement incapable 



