Woodmen's Lien Act

Short title

1 This Act may be cited as the Woodmen's Lien Act. R.S., c. 507, s. 1.

Interpretation

2 In this Act,

(a) "judge" means a judge of any of the county courts in the Province;

(b) "labour, service or services" include cutting, skidding, felling, hauling, scaling, banking, driving, running, rafting or booming any logs or timber and sawing or any necessary work done in connection with a saw mill, and any work done by cooks, blacksmiths, artisans and others usually employed in connection therewith;

(c) "logs and timber" include logs, timbers, boards, deals, scantlings or laths, telegraph poles, railway ties, pitprops, pulpwood, shingle bolts or staves, or any of them, and fence posts and cordwood while lying piled for shipment. R.S., c. 507, s. 2.

No contracting out of Act

3 (1) Every agreement or bargain, verbal or written, expressed or implied, which has heretofore been made or entered into or which may hereafter be made or entered into on the part of any worker, servant, labourer, mechanic or other person employed in any kind of manual labour intended to be dealt with in this Act, by which it is agreed that this Act shall not apply or that the remedies provided by it shall not be available for the benefit of any person entering into such agreement, is hereby declared to be null and void and of no effect as against any such worker, servant, labourer, mechanic or other person.

Section does not apply

(2) This Section shall not apply to a manager, officer or foreman. R.S., c. 507, s. 3.

Lien

4 Any person performing any labour, service or services in connection with any logs or timber within this Province shall have a lien thereon for the amount due for such labour, service or services, and the same shall be deemed a first lien or charge on such logs or timber and shall have priority over all other claims or liens thereon except any lien or claim which the Crown may have upon such logs or timber. R.S., c. 507, s. 4.

Expiry of lien

5 The lien provided for in Section 4 shall not continue to be a charge on the logs or timber after the time within which the statement of claim hereinafter provided for is required to be filed, unless such statement, verified upon oath by the person claiming such lien or someone duly authorized on his behalf, shall be filed as hereinafter directed. R.S., c. 507, s. 5.

Filing of statement of claim

6 Such statement shall be in writing and shall be filed in the office of the clerk of the county court of the county in which the labour or service or some part thereof has been performed, provided that when such labour or services have been performed upon any logs or timber got out to be run down, or which have been run down any of the rivers or streams within the Province, such statement may, at the option of the claimant, be filed in the office of the clerk of the county court of the county wherein the drive terminates or reaches its destination. R.S., c. 507, s. 6.

Form and content of statement of claim

7 Such statement 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 counterclaims and a description of the logs or timber upon or against which the lien is claimed and may be in the Form in the Schedule to this Act or to the like effect. R.S., c. 507, s. 7.

Time limit for filing of statement of claim

8 Such statement shall be filed within sixty days after the last day upon which labour or services or some part thereof were performed. R.S., c. 507, s. 8.

Effect of alienating property which is under lien

9 No mortgage, sale or transfer of the logs or timber upon which a lien is claimed under this Act made during the time limited for the filing of such statement of claim and previous to the filing thereof or after the filing thereof and during the time limited for enforcement thereof, shall in any way affect such lien, but such lien shall remain and be in force against such logs or timber in whosever possession the same shall be found. R.S., c. 507, s. 9.

Enforcement of lien and time limit

10 (1) Any person or persons having a lien upon or against any logs or timber under this Act may enforce the same by action in the county court where such statement of lien is filed, and such action may be commenced to enforce such lien if the same be due immediately after the filing of such statement, or if credit has been given immediately after the expiry of the period of credit, and such lien shall cease to be a lien upon the property named in such statement unless the proceedings to enforce the same be commenced within thirty days after the filing of the statement of claim or within thirty days after the expiry of the period of credit.

Required defendant

(2) In all such actions the person, company or corporation liable for the payment of such debt or claim shall be made the party defendant. R.S., c. 507, s. 10.

Content of notice

11 (1) There shall be attached to or indorsed upon the originating notice a copy of the lien claim as hereinbefore provided and no other statement of claim shall be necessary unless ordered by the court or judge.

Practice

(2) Except as herein otherwise provided, the practice shall be that of the county courts.

Service of notice and content of judgment

(3) Originating notices may be served anywhere in the Province in the same manner as in other cases, and the judgment shall declare that the same is for labour or services, the amount thereof and costs, and that the plaintiff has a lien therefor and the property described when such is the case. R.S., c. 507, s. 11.

Sale under execution

12 When an execution has issued and has been placed in the sheriffs 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 other money into court and the distribution of money and otherwise shall, as far as practicable, be the same as hereinafter provided for proceedings upon and subsequent to an attachment. R.S., c. 507, s. 12.

Action to enforce lien may be summarily heard

13 (1) The judge may direct that any action brought to enforce a lien under the provisions of this Act shall be disposed of summarily by him in chambers without waiting for the regular sitting of the court, upon such terms as to notice and otherwise as the order shall provide, and the same shall be so heard and disposed of.

Application to set aside seizure

(2) The judge may also entertain in chambers any application to set aside an attachment or seizure or to release logs or timbers that have been seized and may summarily dispose of the same. R.S., c. 507, s. 13.

Order of attachment

14 Where the amount of any claim whereon action has been commenced as aforesaid is not less than ten dollars, upon the production and filing of a copy of said 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 the same 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;

(b) the person indebted for the amount of such lien has absconded from the Province with intent to defraud or defeat his creditors; or

(c) the logs or timber are about to be cut into lumber or other timber so that the same cannot be identified,

and that he is in danger of losing his said claim if an attachment does not issue, and if an affidavit corroborating the affidavit of the plaintiff in respect to clauses (a), (b) and (c) is also filed, then the judge of the proper county court may, on application made to him ex parte, direct the clerk to issue an attachment order directed to the sheriff of such court, commanding such sheriff to attach, seize, take and safely keep such logs or timber, or a sufficient portion thereof, to secure the sum mentioned in the order and the costs of the action and of the proceedings to enforce the lien, and to return the order forthwith to the court out of which the same is issued. R.S., c. 507, s. 14.

Subsequent seizures

15 Where additional claims are made, or the amount of claim is increased, or sufficient seizure has not been made, a second or subsequent seizure may be made either under execution or attachment. R.S., c. 507, s. 15.

Service of attachment order

16 A copy of the attachment order shall be served upon the defendant, and if the defendant in such attachment is not the owner of the logs or timber described in the attachment order, then a copy of the order shall also be served upon the owner of said logs or timber or upon the agent or person in whose possession, custody or control for him they may be found and the owner may, on his own application or by the direction of a judge, be made a party defendant at the trial. R.S., c. 507, s. 16.

Substituted service of order

17 In case the defendant or owner cannot be found within the Province, or the owner cannot be ascertained, and no agent or person is in possession for the owner, the order may be served in such a manner as the judge shall by order direct. R.S., c. 507, s. 17.

No seizure of timber in transit by water

18 No sheriff shall seize upon or detain any log or timber under this Act when in transit by water from the place where cut to the place of destination. R.S., c. 507, s. 18.

Release of attached property upon filing of bond

19 In case of an attachment, if the owner of said logs or timber, or any person in his behalf, shall execute and file with the clerk of the court out of which the attachment has been issued a good and sufficient bond to the person claiming the lien, executed by two sureties and conditional for the payment of the claim and of all damages, costs, charges, disbursements and expenses that may be recovered by the claimant in such proceedings, together with the amount for which a lien is claimed in any other action, if any, the judge may, upon application, ex parte, if satisfied as to the sufficiency of the bond, issue an order to the sheriff having in charge the logs or timber, directing their release, and upon service of such order upon the sheriff he shall release the same. R.S., c. 507, s. 19.

Procedure for disputing attachment order

20 Any person who has been served with a copy of an attachment order under this Act and who desires to dispute the same shall, within twenty days after such service, enter, in the court in which proceedings are pending, a notice that he or they dispute the claim upon the lien in whole or in part, or file a statement of defence as the practice of the county court may require. R.S., c. 507, s. 20.

Lien vacated upon payment

21 The defendant may, at any time after service of the attachment order and before the sale of the logs or timber, pay into court the amount for which a lien is claimed in the action, together with the amount for which a lien is claimed in any other action, if any, and together with the costs of the proceedings thereon to the date of such payment taxed by the judge if so required, and the person making such payment shall thereupon be entitled to a certificate vacating such lien, and upon said certificate being filed with the clerk of the county court in which the original statement of claim was filed, the said lien shall be vacated and all further proceedings thereon shall cease, and the person making such payment shall further be 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 19. R.S., c. 507, s. 21.

Hearing and determination of claim for lien

22 After the expiration of the time hereinbefore named within which notice of dispute may be entered or statement of defence filed, the judge shall, in chambers, as provided by Section 13, or at the next sitting of the court, after due notice to all parties to the action and to all persons claiming liens on the logs or timber, and whose liens are duly filed as aforesaid, or to their solicitors, 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 same shall be 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. R.S., c. 507, s. 22.

Report and order of judge

23 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 ten days thereafter, and in default of such payment that the logs or timber shall be sold by the sheriff for the satisfaction of the amount found due to the several parties upon the inquiry and costs. R.S., c. 507, s. 23.

Sale where default of payment into court

24 In default of payment into court under Section 23, within the time named therein, the said logs or timber shall, within twenty days thereafter, be sold by the sheriff, holding the same in the manner and subject to the same provisions of law as goods and chattels seized or taken in execution, unless the judge shall direct that additional publicity be given to the sale, and the amount realized by such sale shall, after deducting the expenses thereof payable to the sheriff, 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 clerk of the said court, provided that where the amount realized upon the sale shall not be sufficient to pay the claims in full and costs, the judge shall apportion the amount realized pro rata among the different claimants. R.S., c. 507, s. 24.

Where balance due after distribution of sale proceeds

25 If, after such sale and distribution of the proceeds thereof under Section 24, any balance remains due to any person under the said order of the judge, judgment may be entered therefor against the person or persons by whom the claim was directed to be paid and execution may be issued thereupon as in the case of other judgments in the county court. R.S., c. 507, s. 25.

Discharge of lien

26 Where nothing shall be found due upon the several claims filed under this Act or upon the lien or liens in respect to which proceedings have been taken, the judge may direct by his said 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 such order direct payment forthwith of any costs which may be found due to the defendant or owner of the logs or timber. R.S., c. 507, s. 26.

Surplus

27 Where more money is paid into court as the proceeds of the sale of logs or timber than is required to satisfy the liens which have been proved, and the interest and costs, the remaining moneys shall be paid over to the party entitled to the same unless the judge otherwise orders. R.S., c. 507, s. 27.

Application for dismissal for want of prosecution

28 Any person affected by proceedings taken under this Act may apply to the judge to dismiss the same for want of prosecution, and the judge may make such order upon the application as to costs or otherwise as may be just. R.S., c. 507, s. 28.

Addition of party

29 The judge may, at any stage of such proceedings on the application of any party, or as he may see fit, order that any person who may be deemed a necessary party to any such procedings [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 such person or corporation or as to such service as may be just. R.S., c. 507, s. 29.

Other remedies preserved

30 Nothing in this Act contained shall be deemed to disentitle any person to any other remedy than that afforded by this Act for the recovery of any amount due in respect of labour or services performed upon or in connection with any logs or timber, and where action is brought to enforce a lien, but no lien be found to exist, judgment may be directed for the amount found due as in an ordinary case. R.S., c. 507, s. 30.

Procedure where joinder or assignment of claims

31 Any number of lien holders 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 6 shall include particular statements of the several claims of persons so joining and shall be verified by the affidavits of such persons so joining, or separate statements of claim may be filed and verified as by this Act provided, and one attachment order or originating notice issued on behalf of all the persons so joining. R.S., c. 507, s. 31.

Where suits brought in more than one county court

32 Where suits are brought in more than one county court respecting liens or claims upon the same logs or timber, the proceedings after the issue of the first execution or attachment shall be had in the county court out of which such execution or attachment first issued, unless the judge shall otherwise order. R.S., c. 507, s. 32.

Practice and procedure

33 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 the same are not inconsistent with this Act, be as nearly as may be according to the forms, tariff of costs and procedure in force in county courts. R.S., c. 507, s. 33.

A.B., (name of claimant), of (here state residence of claimant), (if claim made as assignee then say assignees of, stating name and address of assignor) under the Woodmen's Lien Act claims a lien upon certain logs or timber of (here state the name and residence, if known, of the owner of the logs or timber upon which the lien is claimed) upon the logs and timber composed (state the kind of logs or timber, such as spruce, pine or other logs, ties, poles, posts, etc., and also where situate 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 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 was done) between the . . . . . . . . . day of . . . . . . . . . . and the . . . . . . . . . . day of . . . . . . . . . . at . . . . . . . . . . (per day or 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)

I, . . . . . . . . . ., make oath and say that I have read (or have heard read) the foregoing statement of claim and I say that the facts set forth therein 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 against me.

Sworn before me at . . . . . . . . . .

in the Province of Nova Scotia

this . . . . . . . . . day of . . . . . . . . ., . . . . . . . . . . . . . . . . . . . .

19. . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

(signature of claimant)

R.S., c. 507, Sch.