majority"> Brogden, J.

(1) What is the effect of a request for a bill of particulars, as provided by C. S., 534 ?

*225 (2) Is the claim of plaintiff barred by the statute of limitations?

At the outset it must be noted that the granting of a bill of particulars pursuant to C. S., 534, lies in the sound discretion of the trial judge. Temple v. Telegraph Co., 205 N. C., 441, 171 S. E., 630. When such bill of particulars is required or allowed the evidence offered at the trial must be confined to the specific items set forth in such bill. Gruber v. Ewbanks, 199 N. C., 335, 154 S. E., 318; Pemberton v. Greensboro, N. C., 205 N. C., 599, 112 S. E., 196.

In the ease at bar the plaintiff could not furnish the items constituting the account for the alleged reason that his books had been destroyed by fire. Manifestly under such circumstances the failure to file a list of the items constituting the claim did not preclude the plaintiff from establishing his debt by competent evidence. Otherwise, a fire would discharge a valid debt. Moreover, there was evidence that the defendant E. E. Ourrin had examined the account in the store of plaintiff, had observed the balance due and had promised to pay it. Consequently, the plaintiff was entitled to maintain his cause of action upon such promise. It is accepted law in this jurisdiction that when an account is rendered and accepted, or when so rendered there is no protest or objection to its correctness within a reasonable time, such acceptance or failure to so object creates a new contract to- pay the amount due. Gooch v. Vaughan, 92 N. C., 610; Copeland v. Telegraph Co., 136 N. C., 11, 48 S. E., 501; Davis v. Stephenson, 149 N. C., 113, 62 S. E., 900; Richardson v. Satterwhite, 203 N. C., 113, 164 S. E., 825.

Therefore the plaintiff offered competent evidence tending to establish the liability of defendant E. E. Ourrin upon the account in controversy.

However, the plea of the statute of limitations is a lion in the path of recovery. The account was made in 1922. The promise to pay was made in 19-23. The suit was instituted in November, 1933. Upon the plea of the statute of limitations the burden is upon the plaintiff to show or to offer evidence tending to show that he has brought a live claim to court. Rankin v. Oates, 183 N. C., 511, 112 S. E., 32; Phillips v. Penland, 196 N. C., 425, 147 S. E., 731; Drinkwater v. Telegraph Co., 204 N. C., 224, 168 S. E., 410.

While the plaintiff alleged that the defendants E. E. Ourrin and Lizzie Ourrin left the State in January, 1924, and since said time have been residents of the State of Georgia, such allegation was specifically denied in the answer, and there was no evidence offered at the trial of the nonresidence of defendants. See C. S., 411; Lee v. McKoy, 118 N. C., 518, 24 S. E., 210.

Hence the ruling of the trial judge was correct.

Affirmed.

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