The Intack Lands are of two descriptions, viz., intacks of ease to quarterlands, and intacks detached or otherwise than of ease to quarterlands. Intacks of ease in the hands of the first encloser or purchaser for value were, prior to 1777 held to be chattels, and, consequently, devisable' by will and liable to execution for debt &c., nothwithstanding the Act of 1662 [note 1] before quoted includes in words quarterlands only, intacks of ease were sometimes held to be included in its operation along with quarterlands and consequently descendible along with the quarterlands with which they were purchased to the heir at law of the purchaser, subject to the lien for the original price. The writer has met with many entries on the Manorial Rolls showing that this custom or practice prevailed. The following is an instance of an entry of that nature. If an intack of ease had been acquired along with the quarterland to which it was attached by inheritance, devise, or settlement, or otherwise than by purchase for value, or licence to enclose it, descended along with the quarterland to the heir at law and was not devisable by will and not liable for debts except in the same manner as the quarterland was liable. The Statute of 1645 [note 2] which was a declaration of the Common Law declares that the farm lands or quarterlands with the mills, cottages [105] and intacks of ease to such quarterlands whereof the tenants are possessed or estated by descent (i.e. devolution otherwise than by purchase for value) from their ancestors shall after the decease of such tenants descend to their eldest sons, and for want thereof to their eldest daughters, and for want thereof to the next of kindred "and to no other child or children, person or persons whatsoever, except it be by gift, grant or assignment" approved of by the Lord or his officers. An intack detached or other than an intack of ease to a quarterland was always before the Act of 1777 held to be a chattel devisable by will, and descendible as personal estate to the administrators until it had passed three "descents" not including the first purchaser or encloser after which it became inheritance and descended as inheritance quarterland. Deemster Parr in his abstract written shortly before the year 1700 [note 3], gives the following description of the descent of quarterland and intack; "And it is accustomed that such farm lands or quarterlands as have so fallen one descent do pass and go as in the nature of lands of inheritance afterwards, but if it be any mill erected on intack or cottages or any other intacks that are not adjoining or incorporated in farme land or quarterland (or otherwise than intack of ease) but are distant from the same or by themselves, such mills, cottages and intacks are to descend and pass three descents (not reckoning the first purchaser or encloser of them) before they become inheritance, but are to be reputed and held as chattels and [106] bequeathable and divideable as other their goods till then."
It is obvious at once that a distinction must be made here between the expressions "descent" and "inheritance." The former meant a devolution to an haeres factus by a voluntary gift or grant, or by will. The latter meant pure inheritance as from ancestor to heir. If this distinction did not exist it would be absurd to say that before these detached intacks became inheritance they must pass three "descents." What kind of descents, therefore, are referred to? Not descents by inheritance, as they were not to have the quality of descendibility by inheritance until after three preliminary descents. These descents manifest1y, therefore, mean such devolutions by will or settlement as would interrupt their quality of being distributable as personal estate, and deprive the Spiritual Court of its jurisdiction over them.
This happening three times (not including the descent from the first purchaser) they became of the nature of quarterlands of inheritance.
The accuracy of Parr in his statement in distinguishing intacks of ease from other intacks appears by the case of Christian v. Cowle, in 1648, which is an express decision deciding that the quarterlands being inheritance and not devisable by will the intacks belonging thereto were also not devisable. The defendants relied upon a devise in the will of plaintiff's father, but the Court of Chancery decided that the lands were descendible to the [107] heir unless aliened by deed, and that a will to the contrary is not effectual.
His correctness, again, as to the "three descents" of detached intacks appears by the case of Garrett v. Callister in which the Keys in 1666 decided that the owner of an intack second in descent from the first encloser dying intestate his administrators were entitled to it as against the heir-at-law, "it being chattels not having passed three descents according as the custom of the country requires," as expressed in their verdict.
The writer has examined many hundreds of entries on the Manorial Roll prior to 1703, the date of the Act of Settlement, showing the descent by inheritance of the others after the three previous "descents." These entries clearly show that the customs in question applied to all intacks of both kinds granted from time to time up to that period. The cases on the Roll are so numerous that there is no necessity to point out particular instances, sufficient to say that the Roll shows, in all cases that the customs stated uniformaly prevailed in the manner before described. Nothing being clearer, in the opinion of the writer, than that before and at the time of the Act of Settlement the tenure and descent of the two classes of intacks were as before described, certain classes being held lands of inheritance and others held to be chattels, it will be obvious to the reader that the Act of Settlement, when read with reference to that state of the custom did not affect any change in [108] that respect. The Act says, "provided nnevertheless that all intacks, cottages and mills, which by the law and customs of the said Isle were and are reputed chattels might be chargeable with debts and devisable by gift, grant, will or assignment as formerly accustomed." The writer conceives that there cannot be any reasonable doubt of the effect of the Act either from the wording of this clause or from the general scope of the Act. The provision being expressly confined to those intacks which then were, or had been, reputed chattels cannot by any possibilty be held to apply to those which at no time had been so reputed. If a change in their devolution had been contemplated the words of the Act would have been not by way of provision but by express enactment that all intacks as well those which had, as those which had not theretofore been reputed chattels, should thereafter be held to be chattels, and instead of providing that they should be devisable, &c., as formerly accustomed (which custom did not apply to descended intacks of ease and to intacks of three descents) the enactment would have been that they should be devisable, any former custom to the contrary notwithstanding. The express reference to the former custom seems to the writer to be conclusive against the idea of any alteration being intended. Moreover the general scope of the Act forbids such a construction of it. It was passed, not to alter, but to confirm the estates and tenures of the tenants in their customary lands, and to prevent any misunderstanding as to the effect of the general declaration in the Act that these estates should be customary [109] estates descendible by inheritance, it was considered necessary as explanatory to provide that chattel intacks should remain as to their devolution as before accustomed. If this provision had not been inserted, it might possibly have been argued that the effect of the Act was to make all lands descendible to the heir~at-law. In short, as stated by the Lords of the Privy Council, in Holmes's case the Act was simply intended to define and regulate the relations between the Lord and his tenants. The writer's construction of the Act is in accordance with the uniform contemporaneous and subsequent practice of the Courts, and of the whole country under it. In 1722 the case of Kneale v. Kneale was decided by the Keys. It was the case of a detached intack which had descended" to the father of the plaintiff and defendant. He had devised the land to defendant by will, the plaintiff claimed it as heir-at-law, and the whole point was whether it had passed three descents exclusive of the first purchaser. The verdict shows that excluding the first purchaser, it had only passed two, the devise in dispute being the third, consquently it was held that it was devisable. However it seemed so doubtful whether the necessary three descents had not been passed that the Governor, thirteen years after, allowed a rehearing of the case, but on such rehearing the Keys adhered to their former judgment. If the Act of Settlement had in the opinion of the Courts made all intacks chattels, such a suit as this would never have been advised, much less would a rehearing have been allowed.
[110] The cases of Cottiman v. Coopet and Crellin v. Cooper in 1746 (Mylrea and Taubman, Deemsters presiding) are express decisions in favour of the writers construction of the Act. In these cases it was held that certain intacks and cottages in Peel town which had passed three descents and not been distributed as chattels for many generations were lands of inheritance descendible to the heir, and not chattels qevolving upon the administrator.
In March, 1746, Deemster Mylrea in his reply to a query addressed to the Deemster and Keys in the case of Calcott v Stevenson declares the quarterlands with the intacks of ease thereto to be descendible estates of inheritance according to ancient custom, and that with this custom agrees the Act of Settlement.
In a question of custom the entries on the RoIl of copyhold or customary estates are the best legal evidence, and more especially so with respect to the entries on the Manx Court Rolls prior to the revestment in 1763, as in those days they were made under the supervision of Deemsters who presided in the Manorial Courts. They are consequently as valuable as decisions in contested cases for the purpose of showing the contemporaneous user or practice under the statute.
The writer has accordingly for the purpose of ascertaining the practice, examined several hundreds of en tries on these Rolls from the earliest period up to the Act of Settlement, and from that date up to 1777, and the result of his search enables hiinUto assert confidently, that up to 1777 the distinction [111] before mentioned between the different claases of intacks were invariably kept up, and especially that intacks of ease descended along with the quarterlands to which they were attached, and were not reputed chattels except in the hands of the first purchaser, and moreover that this distinction was not confined to ancient intacks of ease but to all intacks of ease licensed from time to time before and after the Act of Settlement.
The writer has been lengthy in his explanation as to intacks of ease, but he trusts that the reader will not consider him two tedious. He conceives that if it is thought worth while retaining our peculiar tenures, it is a matter of importance that their incidents should be properly ascertained and understood. He has also had another reason for treating the matter at such a length. Intending to impeach the correctness of a late decision of the House of Keys, he felt bound to state his grounds at length in duty to himself, and to afford the members of the Bar who have not studied this particular peculiarity of the tenure the means of forming an opinion on the correctness of the writer's conclusion on the subject, a conclusion with which Messrs Gell and Callow, senior members of the Bar, agree. Both these gentlemen and the writer being engaged in the case in question, had occasion to look up the law on the subject, and can therefore without vanity claim to have a better acquaintance with it than the rest of the Bar.
The decision referred to was made in the case Teare v. Quirk decided by a jury at law on 11th [112] October, 1859, and by the Keys on appeal on the 28th March, 1860. The case was as follows: The defendant's father, Patrick Quirk, was possessed of a small estate, part quarterland, part intack. The intack portion had been originally in 1728 enclosed by the owner of the quarterland, and had devolved along with it through successive sales to Quirk, defendant's grandfather, and from him had descended by heirship to his son Patrick, the defendant's father, who by his will made the plaintiff Teare "executor of his houses, lands, monies, and effects.". Under this he claimed the lands. The quarterland and intack had always been farmed as one property, and by the removal of the intervening fences had become hardly distinguishable from each other. On the trial at law the plaintiff abandoned the claim as to the quarterland which he admitted was not devisable, but claimed the intack.
This the defendant resisted on the ground that it was an intack of ease within the description given by Deemster Parr, and consequently not devisable if the quarterland with which it had devolved by the same title was not so. One very serious defect in our Common Law procedure is, that the most abstruse questions of law may arise without the judge being able by any means to have previous notice of them. In this case the judge complained of this defect, and that in consequence he was not prepared to express an opinion on the point then raised for the first time before him, and therefore considered it better that the case should travel without any hastily considered remarks of his.
[113] The case was therefore simply decided by the jury. It is hardly necessary for the writer to remark that the opinion of six farmers and tradesmen upon a question of law is of no value whatever as a precedent. The only argument made use of by the plaintiff to the jury on the trial was that this was not an intack of ease, as the intacks of ease were the intacks mentioned in the 8th section of the Act of Settlement [note 4] viz., those taken out of highways adjoining to quarterlands but not belonging to the same.
The very words of the clause "not belonging to, &c.," refuted the argument, but nevertheless it was sufficient for the jury.
With all respect to the Keys who also decided for the plaintiff, the writer ventures to express his opinion that the judgment of a body of private gentlemen, yeomen and merchants, upon a pure question of law is not of equal value with that of a judge. A knowledge of law is not gained by in tuition and does not fo11ow from aptitude for other business, but in the result of application and study devoted to that particular object. Upon questions of fact, the House of Keys, the writer admits, has generally shown itself a satisfactory jury, but without the slightest intention of disrespect the writer questions the value of their decision in this particular case, and, in fact, in all cases requiring a knowledge either of general legal principlei or the customary law, and this he does on several grounds. First, it [114] will be seen from a perusal of the writer's explanation, that the case involved a question requiring careful research into the manorial customs, and a knowledge of our peculiarities of tenure. Now, the writer is aware that no member of the house had ever previously had occasion to study the question in any way, and few of them had any knowledge whatever of the subject except from the arguments on the hearing of the case. Secondly, many of the members of the House were impressed with the argument that the defendant's claim was an innovation contrary to the old practice since 1703, and that the cases quoted by him were exceptions to the general custom of the country. Unfortunately they were left withoul any evidence on this point from the Manorial Rolls. On the other hand, for all that was shown to them this was the first case occuring in the Island, (as the writer believes it to be), by which an intack of ease of the same nature has been severed by a will from a quarterland. Thirdly, the decision was arrived at, after much argument amongst themselves, by the smallest legal majority, the members of the legal profession in the House being divided in opinion. And fourthly, the decision was based on the argument that the Act of Settlement made all intacks chattels, and that if the alleged peculiarity as to intacks of ease previously existed it was abolished by that Act. This, the only ground of plaintiffs argument before the Keys, the writer has already sufficiently shown is untenable, and contrary to the practice evidenced by thousands of entries since 1703. Unfortunately the lands were [115] of so trifling a value, not exceeding £50, that although an appeal to the Privy Council was entered, it was abandoned as the costs of appellant, even if successful, would have been far above the value of the land in dispute. The case, however, went so far that the appellant's and respondent's cases were prepared in manuscript.
Mr Adams, who conducted the suit for the plaintiff, has furnished the writer with his case so prepared in order la enable him to give both sides of the question. The only argument raised in Mr Adams's case appears to be that the Act of Settlement amounts to a declaration that by the Common Law a11 intacks were chattels. Along with his case, Mr Adams has furnished the writer with extracts from the Rolls furnished to him by the learned Seneschal (Lawrence Adamson, Esq.), and with his suggestions of the only plausible ground on which the plaintiff's case might possibly have been supported. Both these gentlemen agree with the writer's idea of "descent" as distinguished from "inheritance."
Mr Adamson's construction of the Act of Settlement is however directly opposed to Mr Adams's, and agrees with the writer's. Mr Adamson in his notes says "The Act of Settlement [note 5] provides that all intacks which by the laws and customs of the Isle were and are reputed chattels might be devisable as before. This implies that all intacks were not devisable only such as were [116] reputed chattels. If Mr Adams's argument were correct it would follow that even intacks of three descents were by the Act of Settlement made or declared to be made chattels." The contrary of this is so obvious from the Manorial Roll that Mr Adamson remarks that he can discover no law which deprives intacks which have been the subject of three successive family settlements by deed or will of their original peculiarity," viz., their descendibility as heirship in the nature of quarterland.
It would have been a defect in the customary law of tenure, productive of great inconvenience and-injury to the proprietors of the Island, if on every intestacy the estates were liable to be dismembered and portions taken out of the hereditary course, separated from the quarterland, and divided amongst administrators.
But the foresight of our ancestors provided against this, and no better proof of the writer's theory can be produced than the fact that all over the Island there are great numbers of quarterlands with intacks held or incorporated with them which have descended together for many generations, a state of things which would have almost been impossible if a different tenure custom prevailed.
Although now since the Act of 1777 [note 6] the same amount of inconvenience would not result, yet if the nondevisability of all quarterlands (except purchased) is to be preserved, and the devisability [117] of intacks of ease allowed, instances will probably occur in which proprietors, never dreaming of devising their inheritance lands may, by a careless will, like the will in Teare v, Quirk for instance, dismember their family estates. If these intacks were chattels after the Act of Settlement it will even now require extreme caution to prevent - general words in wills including them. In Davoll v. Taggart (about 1859) it was held that as to devisability, a cottage in Douglas of one descent was, notwithstanding the Act of 1777 as to its devisability, still a chattel and included in a devise of all the testator's "goods, chattels and effects, movable and immovable." The same construction would apply to intacks of ease if they are to be reckoned chattel intacks, and simi1iar words would be sufficient to devise and separate them from the quarterland.
Before leaving the subject of intacks of ease it may be proper to say a few words as to the exact description of lands coming within that designation. Parr defines inheritance intacks to be "intacks adjoining to or incorporated with quarterland or intacks of ease," [note 7] by which the writer presumes him to include not only those adjoining to or incorporated with, but intacks really used and occupied as easements to quarterlands, [118] although not adjoining. This latter class would include the "curragh intacks" or hay lands in the marshes and lhanes [note 8] which are used as easements to the arable wheat farms in the north of the Island. A search on the Roll, coupled with some knowledge of the locality, enables the writer to say that these intacks were amongst the earliest intacks in the island, that they were considered intacks of ease, and, as proved by the entries, actually did descend by inheritance along with the quarterlands, although in many cases they lay several miles distant, and in another parish. The peculiar necessity for the proprietors of the dry, sandy farms in Jurby, Andreas, and Bride to have parcels of meadow land as easements with them was a strong argument in favour of preserving the custom by which they were included amongst the inheritance intacks, to prevent their severance from the farms. There is less difficulty in ascertaining the intacks of ease adjoining to or incorporated with the quarterland. A reference to locality will be the best mode of describing them. For instance the writer has ascertained from the Roll of the Parish of Conchan, that the intacks now held with the quarterlands of Ballacottier, Slegaby, [119] Bibaloe Beg, Bal1a Kilmartin, Bal1anard, Begode, Begode Moar, Kerrodhoo, Clypse Moar, Clypse Creer, Arderry, Balliarghy, Strenaby, Lanjaghin, Bal1amenagh and Bal1askeal1y before 1777, descended as inheritance along with these quarterlands for many generations, some of these intacks having been granted before and some after the Act of Settlement. Intacks now held as belonging to Milntown and Ballakillingan estates in Lezayre, Ballacal1ow estate in Bride, the Guillcaugh and Regaby in Andreas, Ballamoar in Jurby, Whitehouse in Michael, Ballaglass and Ballaterson in Maughold, Ballagroa in Lonan, Ballavolly in Ballaugh, Ballakilley in Marown, Ballaterson in German, Balla-hawin (Kinley) in Santon, Balladoole in Arbory, Gordon in Patrick, Ballavarvane in Malew, and Ball........ [note 9] in Rushen, also descended as intacks of ease to these estates for many generations before 1777. Any person having a knowledge of any of these localities which the writer selects merely as instances, will be able to form an idea of the nature of the lands comprised in the description. It was, however, necessary that the first encloser, or licensee, or purchaser should pass it by will or settlement to the next heir. A mere declaration of intention was a sufficient will for the purpose. (See Stat. 1662, [note 10] and preceding chapter on Wills.) In some cases, to prevent a necessity for any further will or settlement, the licensee on procuring the first entry on the Roll, declared that the intack was to descend in inheritance with his quarterland, and this expressed [120] in the entry was suffiCient to pass the "first-descent". Awhal1an intack, in Braddan, is an instance of this kind. By the Act of 1777, [note 11] as before stated, all lands of whatever description, intacks, quarterlands, etc., are descendible to the heir-at-law, so that the only qualities peculiar to intacks sought to be ascertained by the foregoing disquisition on the subject, are their devisability and their liability for debt, which remains unaffected by the Statute. In respect to devisability the writer has shown that intacks of ease that have descended, or been acquired by settlement or devise along with quarterland, are not devisable by will. As to the liability for debt, (except in the same manner as descended quarterlands are liable) of such intacks acquired by inheritance along with quarterlands not so liable, the writer is more doubtful, as of late years a practice has sprung up by which in several cases they have been taken for debt, although the question of their liability has never been raised. (See Kella case.) [note 12] However, the question of devisability is unaffected by the question of liability for debt, as we already have seen in the case of quarterlands acquired by will, that they [121] may have the one quality, and not the other. The writer is, however, aware from cases upwards of thirty years ago, that they were not then considered liable if the attached quarterland was acquired by inheritance along with the intack. Detached intacks, after three descents, have also been shown to be not devisable, and as to their liability for debt (except as above stated), the writer is not aware of a single case in which it has been decided that they are liable. The presumption will, therefore, be against their liability. Parr, in his Abstract in enumerating the property of a debtor liable to execution, excepts all his lands of inheritance, which would include in the exception this description of property. Before they have passed the three descents they are devisable by will and attachable under execution for debt, in the manner described as to bought quarterlands. [note 13]
Note 1: Revised Statutes, vo1. I, p. 114.
Note 2: Revised Statutes, vo1. I, p. 100.
Note 3: Parr's Abstract — Title "Lands."
Note 4: Revised Statutes, vol. I, p. 164.
Note 5: Sec. 2, Revised Statutes, vol. 1, p. 162.
Note 6: Chapter 13, Revised Statutes, vol. I, p. 333.
Note 7: Parr's Abstract, title "Lands." The full text is as follows:— "And it is accustomed that such farm lands and quarterlands as have so fallen one descent, do pass in the nature of lands in inheritance afterwards. That if it be any mills erected upon intacks or cottages, or any other intacks that are not adjoining or incorporated to farm lands or quarter lands, (or otherwise than intacks of ease), but are distant from the farm, or by themselves, and mills, cottages and intacks are to pass three descents, (not reckoning the first purchaser or inc1oser of them), before they become inheritance, but are to be reputed and held as chattels, and bequeathable and devisible as other than goods, till then."
Note 8: Mr A. W. Moore in the "Surnames and Place-names of the Isle of Man," p. 157, thus describes the lands in the text, called lhanes:— "The name of the Lhane Mooar, or the Lhen Mooar, which drains the Curragh, is etymologically obscure, though it probably means "The Great Ditch." Sir Herbert Maxwell, in explaining Lane Burn in Galloway, quotes Jamieson. "Lane, 1. A brook, of which the motion is so slow as to be scarcely perceptible; the hollow course of a large rivulet in a meadow ground. 2. Applied to those parts of a river or rivulet which are so smooth as to answer to this description." There is no word corresponding to lhane or lhen in our dictionaries, except the adjective lane, full, and it is only known colloquially as applied with the meaning of trench or ditch to the great Curragh drain. Certainly the current of the water in the Lhane Mooar is quite slow enough to answer Jamieson's description, though it can hardly be accepted as a satisfactory derivation.
Note 9; In the existing M.S. this name has been left blank, and cannot be traced.
Note 10: Revised Statutes, vol. I, p. 114.
Note 11: Revised Statutes, vol. I, p. 333.
Note 12: The Kella case referred to in the text, was a very peculiar one. The personal estate of the deceased owner had been administered in the Ecclesiastical Court according to the law then in force, and it was found to be insolvent. It was then sought, in the Chancery Court, to have so much of the lands as were liable to be sold for debt, sold in aid of the personal estate. The lands of quarterland tenure which had belonged to the deceased were in the abbey lands — a barony or manor distinct from the Lord's lands. The lands of intack tenure were Lord's lands, and it was therefore a question whether Lord's lands could be intacks of ease to quarterland estates in another manor. The point was not argued or raised. It was taken for granted by the Counsel on both sides and by the Court that the intack lands were in this case liable to be sold for debt, and they were by order ofthe Court sold accordingly. The proceeds of sale sufficed to discharge all the debts of the deceased.
Note 13: As shown in previous notes, this chapter is of importaoce now only as shewing what the law was prior to the passing of the Wills Act, 1869 (Revised Statutes, vol. 3, p. 469), by section 24 of which, "All real property of whatever description, may be devised by will;" and of the Real Property Act, 1869, (Revised Statutes, vol. 3, p. 472) by section 1 of which, "All lands shall be liable to be taken in execution for payment of debt."