denying jurisdiction to determine the respective and relative rights of such owners and the complainant; the purpose being to merely prevent the doing of something until some other tribunal had determined whether it ought or ought not to be done. Respondents contend that the court has no such jurisdiction, and that the order for the injunction is void. Complainant has advanced no argument and has cited us to no authority supporting the existence of any such general jurisdiction of the court. It is not claimed that, independent of statute, a court of equity, having no jurisdiction to grant final equitable relief, has jurisdiction to grant a preliminary injunction.

The contention of complainant is that under the "statutes of the State" the court "has jurisdiction to preserve the status quo pending a hearing before the Michigan railroad commission." The statute referred to is sections 46 and 47 of Act No. 300, Public Acts of 1909 (3 How. Stat. [2d Ed.] § 6524 et seq.), which is the statute creating and prescribing the powers of the Michigan railroad commission. These sections read as follows:

"SEC. 46. This act shall not have the effect to release or waive any right of action by the State or by any person for any right, damage, penalty, or forfeiture which may have arisen or which may hereafter arise under any law of this State, and all penalties and forfeitures accruing under this act shall be cumulative, and a suit for and recovery of one shall not be a bar to the recovery of any other penalty or damage.

"SEC. 47. In addition to all the other remedies provided by this act for the prevention and punishment of any and all violations of the provisions hereof and of all orders of the commission, the commission, and likewise any person, firm or corporation interested, may compel compliance with the provisions of this act and with the orders of the commission by proceedings in mandamus, injunction or by other appropriate civil remedies."

It is possible the point, except as herein indicated, is not presented for decision-that these provisions enlarge to some extent the general jurisdiction of courts of equity. But we find in them no intimation that it was intended to impose upon courts of equity the duty to restrain, or to aid, suitors to the Michigan railroad commission, or the duty to act as depositaries, or custodians, of property until the commission decides what shall be done with it. We find no intimation of an intention to confer upon courts of equity power to control the acts of individuals, or of corporations, the character of which they may not themselves finally determine.

We are therefore of opinion that the court was entirely without jurisdiction, the injunction void, and its judgment imposing a fine in the proceedings for contempt is reversed, with costs of both courts to respondents, which costs complainant is ordered to pay. 2 High on Injunctions (4th Ed.), § 1425; Brewer v. Kidd, 23 Mich. 440.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, and STONE, JJ., concurred. KUHN and BIRD, JJ., did not sit.

HEBINGER v. ROSS.

1. LIMITATION OF ACTIONS-ACCOUNT CURRENT EVIDENCE.

In an action for the price of logs delivered to defendant under special contract which provided among other things for payment on receipt of scale bills, defendant, who was not proved to have kept an open account with plaintiff but who sent a final statement and check for 175 MICH.-16.

the balance that defendant claimed to be due, could not be held liable as on an account current more than six years after the last item of credit upon the indebtedness as shown by defendant's statement of the amount due. 2. SAME MEMORANDUM ACKNOWLEDGING LIABILITY. A statement in writing signed by defendant showing the several items of the account as contended by defendant, differing, however, in amount from the sum claimed to be due by plaintiff whose claim as to the provisions of the contract were at variance with defendant's and with said statement, was not a sufficient acknowledgment of liability to extend the period of the statute of limitations.

3. SAME.

An express denial that a contract is continuing cannot be treated as an admission of its continuance.

Error to Bay; Collins, J. Submitted January 28, 1913. (Docket No. 35.) Decided May 28, 1913.

Assumpsit by Frederick Hebinger against John C. Ross and another for goods sold and delivered and on a special contract. The court directed a verdict for plaintiff for less than the amount claimed. Plaintiff brings error. Affirmed.

Frank S. Pratt, for appellant.

Stoddard & McMillan, for appellees.

Under date January 24, 1905, the defendants wrote to the plaintiff a letter in which they offered to take—

"What beech and soft maple sawlogs you may have on the Gladwin Branch of the M. C. R. R. estimated at about three or four train loads, at the price of $7.50 per M. feet f. o. b. cars at Nine-Mile station. It is understood that these logs are to be sound, smooth, straight body logs, and to be 8 inches and up at the small end. Same to be loaded with at least 2,500 feet to the car. We will accept railroad scale as a basis of settlement on these logs, and are (will) pay by cash on receipt of scale bills. These logs are to be loaded during the next two months."

At the bottom of this letter, plaintiff wrote: "Accepted" and signed, "F. Hebinger & Co." Pursuant to this contract, plaintiff shipped 74 car loads of logs to the defendants, beginning January 27, 1905, and continuing to March 16, 1905. Under date April 6, 1905, defendants wrote to plaintiff the following letter:

"Herewith inclosed we hand you our check No. 1829 for $2.54 in full payment of lumber and logs bought of you per inclosed statement dated April 1st. We think you will find this statement correct. Kindly acknowledge receipt and oblige.”

With this letter went defendants' check for $2.54 as stated, as well as a statement of logs delivered, reduced to board measure, in which the plaintiff is credited with 169,979 feet of lumber of the value of $1,912.24 and charged with cash and other items amounting to $1,909.70. Defendants' check was returned to them; plaintiff claiming that a larger sum was due him.

This suit was begun in the circuit court for the county of Bay by summons, issued March 31, 1911, delivered to the sheriff on the same day, and served on both of the defendants April 1, 1911. The declaration contains the common counts in assumpsit and a special count for the price and value of 200,000 feet board measure of sawlogs sold and delivered by the plaintiff to the defendants at $7.50 per thousand, pursuant to the contract already referred to. The particulars of the plaintiff's demand as set forth in a bill of particulars filed in said cause are a charge against defendants for 180,000 feet of sawlogs at $7.50 a thousand, amounting to $1,350, with credits to defendants of $923.37, and a claim for interest upon the balance at 5 per cent. from April 1, 1905. The plea was the general issue with a notice of various special defenses, among them the one that the cause of action mentioned in the declaration did not accrue to plain

tiff at any time within six years next before the commencement of suit.

When plaintiff rested his case, defendants asked for a peremptory instruction to the jury, and the motion was granted; a verdict for $2.54 (interest upon which was waived by plaintiff) being directed and judgment entered on the verdict. Motion for a new trial was made and was denied. This ruling and direction of the court and the refusal of the court to grant a new trial are assigned as error.

It is conceded that the claim sued upon is barred by the statute of limitations unless saved by the letter of April 6th and the statement of account inclosed therewith and the check for the balance of the account according to the statement. It is noted that plaintiff testified concerning the return of the check:

"The gist of the talk in part at least was that I claimed they owed me more, and they claimed that covered all they owed me."

Appellant contends: (1) That the account between the parties was a mutual account current, of which account the last item should be and is the payment or tender of payment by check on the 6th day of April, 1905, for which reason the statute had not run against the claim under the provisions of 3 Comp. Laws, § 9732; (2) that the statement rendered to the plaintiff by the defendants with their letter of April 6, 1905, together with the check accompanying it, was an acknowledgment, in writing, of the existence and obligation of the contract sued upon within six years before the commencement of suit under the provisions of 3 Comp. Laws, § 9740.

The sections of the statute already referred to will be read with 3 Comp. Laws, § 9728, which provides, generally, that all actions of assumpsit founded upon any contract or liability, express or implied, shall be commenced within six years next after the cause of action shall accrue and not afterwards. If the suit be