Book acoount. Referred to an auditor, and heard by the court, upon his report, at the March term, 1868, Peck, J., presiding.

Upon the facts stated in the report, the- court rendered judgment for the plaintiff to recover the sum of $800 and the interest on the same from the time the administrator of the estate of W. W. Bliss, in New York, made a final settlement of his administration account, which, the report finds, was about April, 1862; and the court computed interest from May 1,1862. The defend-? ant insisted that the claim was merged in the written contract of May 19,1857, and that the claim was barred by the statute of limitations. To this decision of the court the defendant excepted.

The auditor reported as follows :

“William R. Bliss died the last day of May, 1855, and before his decease he told his son, William Wallace Bliss, what he wanted done in relation to a burial-ground and tomb in the town of Calais, Vt. After the decease of said Wm. R. Bliss, his son William Wallace Bliss contracted with George W. Bliss, of Calais, Vt., to build a tomb, with a view of carrying out his father’s directions, and said George W. Bliss did build the tomb, and was to receive the cost, which was to be paid by said Wm. Wallace Bliss. The cost of the tomb was about seven hundred ' dollars. Wm. Wallace Bliss died in October, Í855, having his residence in the city of New York in the state of New York, and Amos W. Locke was appointed administrator on his estate, under the laws of the state of New York. George W. Bliss died in June, 1866, at Calais, Yt.

“ No administration was taken out in Yermont on the estate of Wm. Wallace Bliss, until about December, 1865, when it was ascertained and known that there was property in Washington county, Yt., belonging to his estate.

“ I find that, after the decease of Wm. Wallace Bliss, George W. Bliss, of Calais, Yt., made a claim against his estate for building the tomb at Calais, Yt., and on the 19th day of May, 1857, there was a balance due George W. Bliss, for building said tomb, of three hundred dollars, and on said 19th day of May, 1857, George-W. Bliss and Amos W. Locke entered into a written contract under seal, said Locke contracting as administrator on the-estate of William Wallace Bliss, a copy of which written agreement is hereto annexed and made a part of this report.

“ The defendant claimed before me at the hearing, that the claim here presented was barred by the statute of limitations, and also that whatever claim Geo. W. Bliss had against William Wallace Bliss for erecting said tomb, was merged in this written contract of May 19, 1857, and the action of book account can not be sustained. I find that the estate of William Wallace Bliss was good and sufficient to pay all of its debts, and that the three hundred dollars specified in said written agreement between Geo. W. Bliss and said Locke, has not been paid by said Locke.

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