as enacted by SM 1987-88, c. 9 on July 17, 1987.
Search this document and show paragraphs with hits
You can use wild cards:
'*' allows for 0 or more characters (eg. ceas* will match 'cease', 'ceased', 'ceasing' and 'ceases')
'?' allows for 0 or 1 character (eg. cease? will match 'cease', 'ceases' and 'ceased', but not 'ceasing')
This search is not case sensitive.
R.S.M. 1987, c. W190
The Woodmen's Liens Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"labour" "service" or "services" includes cutting, skidding, felling, hauling, scaling, banking, driving, running, rafting, or booming any logs or timber, and any Work done by cooks, blacksmiths, artisans and others usually employed in connection therewith; ("travail ou services")
"logs or timber" includes logs, timber, telegraph poles, railway ties, shingle bolts or staves, pulpwood, tanbark, fence posts and cordwood, or any of them, whether lying where cut or piled for shipment; ("billes ou bois en grume" )
"person" in section 2 includes cooks, blacksmiths, artisans, and all others usually employed in connection with such labour, service, or services. ("personne")
LIEN FOR SERVICES
Any person performing any labour, service, or services in connection with any logs or timber within the province has a lien thereon for the amount due, not exceeding the sum of $250., for the labour, service, or services; and it shall be deemed a first lien or charge on the logs or timber, and has precedence over all other claims or liens thereon, except any lien or claim that the Crown may have upon the logs or timber for or in respect of any dues or charges.
Lien to attach when statement filed in court.
The lien referred to in section 2 does not attach or remain a charge on the logs or timber, unless a statement thereof in writing verified upon oath by the person claiming the lien, or someone duly authorized on his behalf, and bearing endorsed thereon the name and post office address of the claimant's attorney, is filed in the office of the registrar of the Court of Queen's Bench.
Contents of statement of lien.
A statement of lien shall set out briefly the nature of the debt, demand, or claim, the amount due to the claimant, as near as may be, over and above all legal set-offs or counter-claims and a description of the logs or timber upon or against which the lien is claimed, and shall be in the form set out in the Schedule or to the like effect.
When statement to be filed - winter work.
Where the labour, service, or services are done between October 1 and April 1 next thereafter, the statement of claim shall be filed on or before April 20 next thereafter.
When statement to be filed - summer work.
Where the labour, service, or services are done or performed on or after April 1, and before October 1 in any year, the statement shall be filed within 20 days after the last day the labour, service, or services were performed.
Disposition ineffective against lien.
No mortgage, sale, or transfer of the logs or timber upon which a lien is claimed under this Act during the time limited for the filing of the statement of the lien claim and previous to the filing thereof, or after the filing thereof and during the time limited for the enforcement thereof, in any wise affects the lien; but the lien remains and is in force against the logs or timber in the possession of whomever they are found.
ENFORCEMENT OF LIEN
Any person having a lien upon or against any logs or timber under this Act may enforce the lien by suit in the Court of Queen's Bench; and the suit may be commenced to enforce the lien, if the debt, demand, or claim is due, immediately after the filing of the statement, or, if credit has been given, immediately after the expiry of the period of credit.
The lien shall cease to be a lien upon the property named in the statement, unless the proceedings to enforce the lien are commenced within 30 days after the filing of the statement of the lien claim or after the expiry of the period of credit.
In all such suits the person, company, or corporation liable for the payment of the debt, demand or claim shall be made the party defendant.
There shall be attached to, or endorsed upon, the writ of summons a copy of the statement of the lien claim filed as hereinbefore provided; and no other statement of claim is necessary unless ordered by the judge, and no pleadings or notices of dispute or defence other than such as are required in a suit or proceeding in the Court of Queen's Bench are necessary.
Where no statement of defence is filed, judgment may be signed and execution issued according to the practice of the court.
The judge may order any particulars to be given or any proper or necessary amendments to be made, or may add or strike out the names of parties at any time, and may set aside judgment and permit a statement of defence to be entered or filed on such terms as to him appear proper.
The writ shall be in the form of that in use in the Court of Queen's Bench and the practice shall follow as nearly as may be that of the court.
Writs may be served anywhere in the province in the same manner as in other cases: and the judgment shall declare that the claim is for labour, service, or services, the amount thereof and costs, and that the plaintiff has a lien therefor on the property described when such is the case.
Procedure subsequent to execution.
Where an execution has issued and has been placed in the bailiffs hands for execution, and no attachment has been issued, the proceedings for the enforcement of the lien shall be by sale under the execution; and the proceedings relating to proof of other claims and the payment of money into court and the distribution of money and otherwise shall, as far as practicable, be the same as are hereinafter provided for proceedings upon, and subsequent to, an attachment.
Procedure where attachment issues.
Where an attachment issues in the first instance, the statement of claim and defence and proceedings to judgment may be the same as hereinbefore provided where a suit has been begun by writ of summons; and where an attachment issues after the proceedings have been begun by writ of summons the proceedings shall continue and be carried to judgment under the writ of summons, except such as are necessary to be taken under the attachment.
In any case, whether commenced by writ of summons or attachment, the judge may direct that it shall be disposed of summarily by him in chambers without waiting for the regular sittings of the court, upon such terms as to notice and otherwise as the order provides, and it may be so heard and disposed of.
Chamber application to set aside attachment or seizure.
The judge may also entertain in chambers any application to set aside an attachment or seizure, or to release logs or timber that have been seized, and may summarily dispose of the application.
Where the amount of a claim filed as aforesaid is not less than $10., upon the production and filing of a copy of the claim and affidavit, and of an affidavit made and sworn by the claimant of the amount of the claim due and owing, and showing that it has been filed as aforesaid, and stating that,
(a) he has good reason to believe and does believe that the logs or timber are about to be removed out of the province; or
(b) that the person indebted for the amount of the lien has absconded from the province with intent to defraud or defeat his creditors; or
(c) that the logs or timber are about to be cut into lumber or other timber or mixed with other logs or timber, so that they cannot be identified: and (d) that he is in danger of losing his claim if an attachment does not issue;
the registrar shall issue a writ of attachment as in the case of attachment under The Queen's Bench Act, directed to the bailiff of the court, commanding the bailiff to attach, seize, take, and safely keep, the logs or timber, or a sufficient portion thereof to secure the sum mentioned in the writ, and the costs of the suit and of the proceedings to enforce the lien, and to return the writ forthwith to the court out of which the writ issued.
Where additional claims are made or the amount of claim is increased or a sufficient seizure has not been made, a second or subsequent seizure may be made either under execution or attachment.
Service of writ of attachment.
Where no writ of summons has issued, the writ of attachment shall also summon the defendant to appear before the Court of Queen's Bench, and a copy of the writ of attachment shall be served upon the defendant; and, if the defendant in the attachment is not the owner of the logs or timber described in the writ of attachment, a copy of the writ shall also be served upon the owner, or upon the agent or person in whose possession, custody, or control they may be found for him.
The owner may on his own application, or by direction of a judge, be made a party defendant at the trial.
Orders allowing defendant or owner to defend.
Where the service has not been personal upon either the defendant or owner, and where a proper defence has not been made, the judge may, in his discretion, admit them or either of them to make full defence and may make such order in the premises as may be reasonable and just to all parties.
Logs not to be seized in transit by water.
No bailiff shall seize upon or detain any logs or timber under this Act when in transit by water from the place where cut to the place of destination.
Possession to be restored upon execution of bond.
In case of an attachment, if the owner of the logs or timber, or any person in his behalf, executes and files with the registrar of the Court of Queen's Bench a good and sufficient bond to the person claiming the lien, executed by two sureties and approved by the registrar and conditioned for the payment of all claims, damages, costs, charges, disbursements, and expenses that may be recovered by the claimant in the proceedings, together with the amount for which a lien is claimed in any other suit, if any, the registrar shall issue an order to the bailiff having in charge the logs or timber directing their release; and, upon service of the order upon the bailiff, he shall release them.
Any person served with a copy of the writ of attachment under this Act who desires to dispute it, shall, within 10 days after the service, enter in the court in which proceedings are pending a notice that he disputes the claim upon the lien in whole or in part.
Where no notice of dispute is entered under section 13, the judgment may be entered as in the case of default, and the practice or procedure may be the same as in a suit begun by writ of summons.
The defendant may, at any time after service of the writ of attachment and before the sale of the logs or timber, pay into court the amount for which a lien is claimed in the suit, together with the amount for which a lien is claimed in any other suit, if any, and the costs of the proceedings thereon to the date of the payment taxed by the registrar of the court if so required, and thereupon he is entitled to a certificate vacating the lien; and upon the certificate being filed with the registrar of the Court's of Queen's Bench, the lien is vacated and all further proceedings thereon shall cease and the person making the payment is further entitled to an order directing the delivery up of the logs or timber seized under the attachment or the cancellation of any bond given under section 12.
Hearing parties, taking accounts, etc.
After the expiration of the time hereinbefore named within which notice of dispute may be entered, the judge shall, in chambers, as provided by subsection 7(11) or at the next sitting of the court, after due notice to all parties to the suit and to all persons claiming liens on the logs or timber, and whose liens are duly filed as aforesaid, or to their attorneys, hear all such parties and claimants, and take all accounts necessary to determine the amounts, if any, due to them or any of them, or to any other holders of liens who may be called by the judge to prove their liens, and shall tax to them their costs and determine by whom the costs are payable, and settle their priorities, and generally determine all such matters as may be necessary for the adjustment of the rights of the several parties.
Judge's report and order for payment and sale.
At the conclusion of the inquiry the judge shall make his report and order, which shall state his findings, and direct the payment into the court in which proceedings are pending of the amounts, if any, so found due and the costs, within eight days thereafter, and, in default of the payment, that the logs or timber shall be sold by the bailiff for the satisfaction of the amounts found due to the several parties upon the inquiry and costs.
In default of payment into court under section 17 within the time named in the order therefor, the logs or timber shall, within 20 days thereafter, be sold by the bailiff holding them in the same manner, and subject to the same provisions of law, as goods and chattels seized or taken in execution, unless the judge directs that additional publicity be given to the sale.
Money realized to be paid into court.
The amount realized by the sale shall, after deducting the expenses thereof payable to the bailiff, be paid into the court in which the proceedings are pending, and shall, upon the application of the several parties found to be entitled thereto under the order of the judge, be paid out to them by the registrar of the court.
Apportionment where sum realized insufficient.
Where the amount realized upon the sale is not sufficient to pay the claims in full and costs, the judge shall apportion the amount realized pro rata among the different claimants.
Judgment and execution for balance remaining unpaid.
Where, after the sale and distribution of the proceeds thereof under section 18, any balance remains due to any person under the order of the judge, the registrar of the Court of Queen's Bench shall, upon the application of that person, give to him a certificate that the amount remains due, which certificate may be entered as a judgment in the court against the person by whom the claim was directed to be paid, and for all purposes shall be deemed a judgment of the court and enforceable as such.
Discharge of liens where claims unfounded.
Where nothing is found due upon the several claims filed under this Act or upon the lien or liens with respect to which proceedings have been taken, the judge may direct by his order that the lien or liens be discharged and the logs or timber released or the security given therefor be delivered up and cancelled, and shall also by that order direct payment forthwith of any costs that may be found due to the defendant or owner of the logs or timber.
Disposition of balance of money paid into court.
Where more money is paid into court as the proceeds of the sale of logs or timber than is required to satisfy the liens that have been proved and the interest a .d costs, the remaining moneys shall be paid over to the party entitled to those moneys unless the judge otherwise orders.
Dismissal for want of prosecution.
Any person affected by proceedings taken under this Act may apply to the judge to dismiss the proceedings for want of prosecution, and the judge may make such order upon the application as to costs or otherwise as may be just.
The judge may at any stage of the proceedings on application of any party, or as he may see fit, order that any person who may be deemed a necessary party to any such proceedings be added as a party thereto or be served with any process or notice provided for by this Act; and the judge may make such order as to the costs of adding that person or corporation or as to such service as may be just.
Nothing in this Act disentitles any person to any other remedy than that afforded by this Act for the recovery of any amount due in respect of labour, service, or services performed upon or in connection with any logs or timber; and where a suit is brought to enforce a lien, but no lien is found to exist, judgment may be directed for the amount found due as in an ordinary case.
Any number of lienholders may join in taking proceedings under this Act, or may assign their claims to any one or more persons; but the statement of claim to be filed under section 4 shall include particular statements of the several claims of persons so joining and shall be verified by the affidavits of the persons so joining, or separate statements of claim may be filed and verified as by this Act provided and one attachment or writ of summons issued on behalf of all the persons so joining.
Q.B. procedure, forms, tariff, etc., to apply.
The forms necessary to be used in any action or proceeding under this Act, the costs to be taxed to any party therein and the procedure regulating the practice in actions brought and other proceedings taken under this Act shall so far as are not inconsistent with this Act be, as near as may be, according to the forms, tariff of costs and procedure in force under the Court of Queen's Bench Act.
STATEMENT OF CLAIM OF LIEN
A.B. (name of claimant), of (here state residence of claimant), (if so) as assignee of ( state name and address of assignor) under The Woodmen's Liens Act, claims a lien upon certain logs or timber of (here state the name and residence of the owner of logs or timber upon which the lien is claimed, if known) which logs and timber are composed of (state the kinds of logs or timber, such as spruce, tamarack, cedar, or other logs, ties, poles, posts, etc., also where situated at the time of filing of statement) in respect of the following work, that is to say (here give a short description of the work done for which the lien is claimed), which work was done for (here state the name and residence of the person upon whose credit the work vas done) between the day of and the day of , at (per day, month or quantity).
The amount claimed as due (or to become due) is the sum of; (when credit has been given) the said work was done on credit, and the period of credit will expire on the day of , 19 .
(Signature of claimant).
AFFIDAVIT TO BE ATTACHED TO STATEMENT OF CLAIM
I, , make oath and say that I read (or have heard read) the foregoing statement of claim, and I say that the facts therein set forth are to the best of my knowledge and belief true, and the amount claimed to be due to me in respect of my lien is the just and true amount due and owing to me after giving credit for all sums of money, goods or merchandise to which the said (naming the debtor) is entitled to credit as against me.
Sworn before me at in the of this day of , 19 .
(Signature of claimant).
A Commissioner for Oaths.