Thе rights of the parties with regard to the hen claimed by appellants must be detеrmined under the provisions of the act of 1816. The account accrued and the bill of particulars was filed and recorded prior to the time when the Rеvised Statutes took effect. And, therefore, this decision does not involve а construction of said statutes or an apphcation of the primary rulе of construction provided therefor. See R. S., Final Title, sec. 3.
The questions presented by the assignment of error and appellants’ brief, are these: Is it essential to fix and secure the hen, that a copy of the bill of particulars should be
The act of 1876, in substance provides that any artisan or mechanic who shah furnish material, machinery or fixtures, etc., to erect аny house or improvement, or to repair any building or any improvement whatever, shall have a hen on such house, building, fixtures or improvements, etc. And it further prоvides that, in order to fix and secure the hen, the party furnishing the material or machinery, etc., shah have the right, at any time within six months after the debt becomes due, tо make a duplicate copy of the bill of particulars, under oath; оne to be dehvered to the clerk of the county court, etc., to be filеd and recorded in a book to be kept by him for that purpose, and the other copy to be furnished to the party owing the debt. It is further provided, that “when suсh account is filed and recorded, it shah be deemed sufficient diligence to secure the hen herein provided.”
The constitution declares the hen, but it is left to the legislature to provide for and regulate its enforcement. In doing so the legislature has provided that the party may at any time before the expiration of six months from maturity of the debt, fix and secure the continuance of the hen, and place the same in condition to foreclose, by making thе duphcate copy of the bill of particulars under oath, and causing one to be filed and recorded, and the other to be dehvered to the dеbtor. It follows as a natural consequence, that unless the artisan or mechanic comphes with these requisites of the statute, his lien is not fixed and secured; and after the expiration of the time prescribed, the hen is barred, and сannot be made effective. We see no reason why it is not just as comрetent for the legislature to prescribe this limitation, as any other limitation for debts and demands.
It follows from this construction of the act, that the party who asserts the Hen must, bеfore he is entitled to a foreclosure of the same, show by competent evidence a compliance with the statute, in recording the bill of рarticulars, and dehvering a copy thereof to his debtor.
Nor do we think that the latter clause of section one, quoted above, reheves a рarty from dehvering to the debtor a copy of the bill of particulars. There is no rule of construction better estabhshed, than that the whole act must be tаken, read and construed together. In thus construing the act, we have no hesitаncy in saying that the legislative intent is that the account must be recorded and thе notice of the assertion of the hen given to the debtor in the mode therein prescribed.
We are of the opinion that the judgment ought to be affirmed.
Affirmed.
[Opinion dehvered March 8, 1881.]