
    Eliphalet Packard versus George C. Swallow, Ex’r.
    Where a suit is commenced against an executor, within four years of his appointment, and by mistake of the attorney as to the sitting of the Court, the action is not entered, this mistake will not avail the party to maintain a new suit after the four years have expired.
    The plaintiff commenced this suit against the defendant, as executor, more than four years after his appointment, under these circumstances. Before the four years had elapsed, the plaintiff’s attorney brought an action upon the same demand, to the District Court, but after the writ was served and returned to his office, the attorney supposing the Court sat later than it did, omitted to enter the action, and this suit was com» menced in consequence of that omission.
    
      Barroios, for the defendant.
    The action against the executor, is barred by the statute of limitations. R. S. chap. 120, § 23, and chap. 146, $ 29.
    
      The case is not within the exceptions specified in R. S. chap. 146, $ 12.
    
      G. F. Shepley, for plaintiff,
    submitted the case without argument.
   TjENNEx, J. orally.

A question arises here whether the statute of limitations attaches to this suit. The action was commenced more than four years after defendant’s appointment and within the six months allowed to parties, in case the suit commenced within the proper time, has failed for any of the reasons allowed, to prevent the attachment of the statute of limitations. As to the former suit, it is proved that the attorney mistook the time of the sitting of the Court and did not enter his action, and the plaintiff now relies upon chap. 146, <§> 12, to sustain this new suit. In this section, several causes are specified which will enable a party to maintain an action, after the four years have expired, but among them all, is not enumerated the one here relied upon. If the plaintiff had himself made this mistake, it could not enable him to commence a new action, and one by his attorney would not make his case better. The Court cannot add to those therein enumerated. Nonsuit.  