1. It is urged here for the first time that the complaint does not state facts entitling the plaintiff to relief. As defendant is not precluded by the decree from making the objection, he is entitled to insist upon it now.
2. The question involved is whether plaintiff had perfected and obtained his lien as claimed. The statute imposes the duty upon every laborer entitled to a claim of lien upon a mine, lode or deposit to file his claim with the county clerk of the county in which the mine is situated within sixty days after he has ceased to labor therein. “The right,” say the learned authors of the American and English Encyclopedia of Law (vol. 20, 2 ed., p. 493), “to assert and perfect a mechanic’s lien, is very generally held to be a privilege which the lienor may exercise or not, at his pleasure, and hence is subject to waiver.” Indeed, this *126court has held as much in Hughes v. Lansing, 34 Or. 118 (55 Pac. 95, 75 Am. St. Rep. 574).
3. In this case we say, construing a like statute, that “While the statute gives the lien in the first instance for a specified time, without the assertion of any formal claim therefor, it is made incumbent upon the lienor, if he intends to preserve his lien, to make a record of such intention, and to bring suit thereon within the time prescribed ; and, if he does not observe these regulations, the lien must be deemed to have lapsed.” See, also, Ramsey’s Appeal, 2 Watts, 228 (27 Am. Dec. 301). Thus it is that the filing of the lien within the time prescribed by the statute becomes a condition precedent to preserving the inchoate right of lien that the laborer has by reason of performing his work, and, if not observed, the lien is lost.
4. Both upon authority and under the Code time is reckoned by excluding the first day, or day from or after which an act is done, and including the last of the period prescribed : 28 Am. & Eng. Enc. Law (2 ed.), 211; Carothers v. Wheeler, 1 Or. 194; O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004). Governed by this rule, we find that by excluding the last day of service, namely, November 7, and including the last of the sixty days given for filing the lien, the plaintiff is short one day; that is, excluding November 7, the sixty days fully expired with the 6th of January, 1904, and the filing on the 7th was too late. The complaint was therefore insufficient to support the decree, which leads to a reversal, and the cause will accordingly be dismissed. Dismissed.
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