the evidence on behalf of plaintiff that the tract alleged, as well as all liability. The defendant ever disputed his liability. jury found for plaintiff. The amount he was The word "account" has various meanings and is used in a variety of ways and senses, many of which would not include the claim sued on in this case. An account arises out of contract or some fiduciary relation. Its ordinary commercial usage is to refer to a claim or demand growing out of the sale of goods, the performance of services, and the Under this state of the evidence, the court held, in effect, that by the offer the defendant admitted actual liability, and it was not an offer merely by way of compromise to avoid litigation. Such a finding of fact by the court was clearly supported by the evidence, and this court will not, under those circumstances, disturb the finding. It is true that the defendant denied the testimony on behalf of plaintiff and said that he expressly denied liability, but offered to pay $250 by way of compromise to avoid litigation. This evidence was merely in conflict with the evidence of the plaintiff, and on such conflicting evidence, the finding of the lower court will not be disturbed. It is said in Colburn v. Groton, supra, that "when the evidence of intent is 'conflicting, and the result doubtful,' the question whether an offer of payment was an admission of liability may be submitted to the jury, with instructions that they are 'to ascertain the meaning of the party mak-like. When used alone, without words of ing it, and * * inquire and consider what were the views and intention of the defendant in making it; that if, viewing it in this way, they should find that' it 'was intended by him as an admission of a fact, then it' is 'to be considered by them as evidence; otherwise, they' will 'lay it out of the case.' The lower court, however, was not asked to leave this matter to the jury or to instruct it with reference thereto. If the defendant desired the jury to consider it, he should have requested an instruction to that effect. A mere nondirection is not error. Brown v. People, 20 Colo. 161, 36 Pac. 1040; Highlands v. Raine, 23 Colo. 295, 47 Pac. 283; Mining & Milling Co. v. Prentice, 25 Colo. 4, 52 Pac. 210. The defendant also complains because the court refused to permit him to prove that he had an offer from another party to take a lease upon the property and the defendant refused to consider it, because he wanted to sell the property, and did not want to lease it. The defendant claims that this testimony would tend to rebut the testimony of plaintiff, that the defendant offered to pay him to obtain a lessee. It appears from the record that this offer by another party to take a lease was after the contract between plaintiff and defendant was entered into. This testimony was certainly irrelevant. The defendant also says that the court committed error in instructing the jury that if they found for the plaintiff, their verdict should be for $500 and interest from the date that the lease was entered into, at 8 per cent. per annum. If the jury found for the plaintiff at all, their verdict would have to be for $500, because that was the amount of the commission under the contract, alleged by plaintiff, and supported by his evidence, while the answer and the evidence of the defendant denied the con limitation, extension, qualification, or explanation, it is sometimes equivalent to the word "claim" or "demand," when referring to an indebtedness arising out of contract or some fiduciary relation. Morrisette v. Wood, 128 Ala. 505, 30 South. 630; Southern Kan. Ry. Co. v. Gould, 44 Kan. 68, 24 Pac. 352. In this sense, the claim of plaintiff was money due on account, and as the statute does not limit or qualify the meaning of the word "account," as therein used, it must include the claim sued on in this case, and the plaintiff was entitled to interest from the time the claim became due; it being liquidated. Inasmuch as all of the assignments of error discussed by the defendant have been considered and no error is apparent, the judgment is affirmed. (Supreme Court of Colorado. July 5, 1910.) 1. ANIMALS (8 34*)-QUARANTINE REGULA TIONS-VIOLATION-STATUTE-REPEAL. Laws 1903, c. 170, § 14 (Rev. St. 1908, § 6404), provides that any person who shall violate any sanitary provision of this act or any shall be guilty of a misdemeanor, etc. sanitary or quarantine regulation of the board Laws 1905, c. 122, § 1 (Rev. St. 1908, § 6401), provides that, whenever the state board of stock commissioners knows that infectious or contagious diseases exist among domestic animals. it shall take such steps as will prevent the spread of such diseases, and it is empowered to compel the dipping, spraying, or such other treatment powered to order the owners of infected or exas the board may adopt, and the board is emposed animals to spray, dip, or otherwise treat them, and, if the owner or person in charge *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes fails to treat the animals as ordered, the board can seize the animals and cause them to be treated and hold and sell them to pay costs of inspection, their care and treatment, and the costs of sale. Held, that the rules and regulations of the board, except matters of administrative detail, were superseded by the act of 1905, and, it being a later and more specific act, it repealed the general provisions of the law of 1903, declaring a violation of the rules and regulations of the board a misdemeanor. [Ed. Note.-For other cases, see Animals, Cent. Dig. § 93; Dec. Dig. § 34.*] 2. CONSTITUTIONAL LAW (§ 62*)-PROTECTION to prevent the spread of infectious and contagious diseases among the cattle of the state, and after it was demanded of him, by the board, that the cattle owned by him, on a certain ranch, be sprayed and dipped, as provided by the regulations of the board. The defendant demurred to the information, upon the ground that the statute is unconstitutional and void, in so far as it attempts to confer upon the said board the power of declaring what acts or omissions should constitute a misdemeanor, for the reason that such powers could not be lawfully delegated to such board by the General Assembly. The demurrer was sustained and the defendant discharged. The protection of domestic animals, and the prevention of the spread of infectious or contagious diseases among them, being a proper subject of police regulation, the Legislature may In the performance of his duty, as requirdelegate to some person or board the discretion ed by section 1997, Rev. St. 1908, the district of determining when an emergency exists and when the means afforded shall be employed to attorney has sued out this writ of error to abate a menacing condition, and such discretion review the judgment of the county court. may be vested in the state board of stock in- The county judge, in discharging the defendspection commissioners, which is but an auxil-ant, declared the statute unconstitutional, in iary of the state government. [Ed. Note.-For other cases, see Constitution- so far as the Legislature delegated to the al Law, Cent. Dig. §§ 94-102; Dec. Dig. § 62.*] board the power to declare, by rules and reg, En Banc. Error to Cheyenne Countyulations, what acts should constitute a misCourt: Isaac F. Jones, Judge. firmed. demeanor. William Lange was prosecuted for a vio- The people have confided to the General lation of certain rules and regulations adopt-Assembly the power of declaring what acts ed by the State Board of Stock Inspection or omissions shall constitute a crime; but Commissioners, as a sanitary regulation. they have not confided to the General AsFrom a judgment sustaining a demurrer to sembly the authority to transfer this power the information, the People bring error. Af- to any other person or body. Whether the Legislature, in the act under consideration, has or has not delegated its authority to the board of stock inspection commissioners, we shall not determine. We shall, however, affirm the judgment for reasons convincing us that the section upon which the state reliel to convict the defendant has been repealed, to the extent hereafter stated, by a later Ralph Talbot, C. C. Hamlin, Dist. Atty., Thomas Ward, Jr., Special Asst. (R. W. McCrillis, of counsel), for the People. A. E. Bowe, for defendant in error. STEELE, C. J. The statute creating the State Board of Stock Inspection Commissioners contains these provisions: Section 6390, Rev. St. 1908: "Said board shall make such rules and regulations touching the manner of inspection of brands and live stock, and affecting quarantine and sanitary conditions, as they shall deem proper; provided, that the same do not conflict with this act." Section 6404: "Any person or corporation who shall violate or disregard any brand, quarantine or sanitary provision of this act, or any brand, sanitary or quarantine regulation or order of the board, made in pursuance of its official duties, shall be guilty of a misdemeanor and upon conviction thereof shall be fined in the sum of not more than five hundred (500) dollars or imprisonment in the county jail for a period not to exceed one (1) year or by both such fine and imprisonment." The information filed in the county court of Cheyenne county charges that the defendant violated certain rules and regulations adopted by the state board as a sanitary regulation, and deemed by the board necessary statute. By the act of 1905 (Laws 1905, c. 122; Rev. St. 1908, § 6101) it is provided that, whenever it shall become known to the State Board of Stock Inspection Commissioners that infectious or contagious diseases exist among the domestic animals of any section of the state, it shall become the duty of the board to take such steps as will prevent the spread of such disease, and the board is empowered to compel the dipping, spraying, or such other treatment of said animals under such rules and regulations as the board may adopt. And the board is empowered to order the owners of such animals as it may find to be infected, or to have been exposed to such disease, to spray, dip, or otherwise treat the said animals. If the owner or persons in charge of the animals ordered treated shall fail to treat the animals as ordered by the board, then the board, is authorized to seize the animals and cause them to be treated, and hold them and sell them to pay costs of inspection, the care and treatment of them, and the costs of sale. The rules and regulations of the board, ex- | sustaining the demurrer, namely, that the cept matters of administrative detail, were law under which the defendant was being superseded by the act of 1905, and, it being prosecuted is unconstitutional. The Legislaa later and a more specific act, it repealed ture cannot delegate its authority in the manthe general provision of the law of 1903 ner attempted to a board of stock commis(Laws 1903, c. 170), declaring a violation of sioners, to make rules and regulations, the the rules and regulations of the board to be violation of which would be a misdemeanor. a misdemeanor. For, as stated by Mr. Jus- Had the Legislature provided that a failure tice Redfield of the Supreme Court of Ver- on the part of a stock owner to observe premont: "I know of no rule of construction of scribed sanitary and quarantine regulations statutes of more universal application than should be an offense, it might have delegated that later and more specific statutes do, as the power to the board to determine, as a a general rule, supersede former and more fact, under rules which it was authorized to general statutes, so far as the new and more prescribe, what would constitute a violation specific provisions go." Isham, Adm'r, v. of such regulations, or when they should be Bennington Iron Co. et al., 19 Vt. 249. enforced, but no further; or, as held, in effect, in some of the cases on the subject in defining the line beyond which the Legislature may not go in delegating its power, the Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. That is as far as the best-considered cases on the subject of delegation of authority by a legislative body go. We presume that the act of 1905, being the latest expression of the legislative will on the subject, contains every provision deemed necessary to fully protect the domestic animals from contagious and infectious diseases, and as no mention is made of any other penalty for failure to observe the rules and regulations of the board than of empowering the board to sell the animals, for the purpose of paying all expenses incurred in treating and caring for them, we assume the Legislature intended to impose no other. In the case at bar it will be observed that the statute does not prescribe any rules or regulations, or that a violation of any substantive offense which it defines, or of any an offense; but leaves the whole matter of making rules and regulations touching the manner of inspection of brands, and affecting quarantine and sanitary conditions, to the board, thus leaving to that body the power to make rules having the force and effect of law, the violation of which is declared to be a misdemeanor. In short, the Legislature has not defined any offense, or made any act penal, but has delegated this authority to the board. This, it is submitted, the Legislature cannot do. The authority of the Legislature to enact laws for the protection of domestic animals, and to prevent the spread of infectious or contagious diseases among them, is every-regulations which it provides, shall constitute where recognized as a valid exercise of the police power of the state. In the exercise of such power, it becomes necessary to vest in some person or board, the discretion of determining when an emergency exists, and when the means afforded shall be employed to abate a menacing condition. The State Board of Stock Inspection Commissioners is but an auxiliary of the state government, and it is entirely competent for the Legislature to vest in such board authority to determine when an infectious or contagious disease exists among the domestic animals, or when the domestic animals have been exposed to such disease, and to authorize the board to compel such treatment as will, in its judgment, prevent the spread of the disease. We find nothing in the act of 1905 violative of the Constitution; but we must affirm the judgment discharging the defendant, for the reason that section 6404, Rev. St. 1908, has been repealed in so far as it makes it a misdemeanor to violate the rules and regulations of the board, upon the subject covered by the later and specific act of 1905. Judgment aflirmed. The act of 1905 does not repeal the act of 1903. The earlier act was intended to provide for a prosecution against one who violated rules and regulations prescribed by the board. The later act does not attempt in any way to modify or supplant this provision, but merely provides under what conditions the board may cause infected animals to be treated, so as to prevent the spread of disease. Both stand independent, and are merely supplementary to each other. (48 Colo. 364) DOWNING v. TIPTON. (Supreme Court of Colorado. July 5, 1910.) CAMPBELL, J., not participating. GAB- 1. JUSTICES OF THE PEACE (§ 173*)—APPEAL BERT, J., concurring specially. TO COUNTY COURT-SCOPE OF INQUIRY. Under Mills' Ann. St. § 2687, providing GABBERT, J. (concurring specially). The that on the trial of an appeal before the counjudgment of the trial court should be affirm- of the service of summons, nor to any proceedty court no exceptions shall be taken to the form ed for the reasons given by that tribunal, inings before the justice, one appealing from a *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes justice's judgment and proceeding to trial on the | peal was taken by appellant to the county merits after the overruling by the county court court, where, by trial to a jury, verdict and of his motion to dismiss waives all irregularities in the proceedings by which he was brought judgment were again in favor of appellee in into justice's court. the sum of $160 and costs of suit, from which this appeal is prosecuted. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 662; Dec. Dig. § 173.*] 2. APPEAL AND ERROR (§ 1002*) — VERDICT CONCLUSIVENESS. The first group of assignments of error challenges the jurisdiction of the county court to proceed with the trial, where appellant, by motion, asked the dismissal of the A verdict on conflicting evidence and supported by evidence will not be disturbed on ap-action, for the reasons, he claimed: (a) That peal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 8 1002.*] 3. APPEAL AND Error (§ 758*)-BRIEFS-SPEC IFICATION OF ERROR-SUFFICIENCY. it does not appear from the justice's transcript of docket, records, and files in said cause that said justice had jurisdiction of the subject-matter, nor of the party defendant; The argument in appellant's brief on rul- (b) it does not appear that said justice had ings on the admission and rejection of evidence any jurisdiction to render any judgment that appellant claims prejudicial errors on each against defendant; (c) it does appear that and every one of the rulings of the court against said justice was totally without jurisdiction; him, in exclusion of evidence offered by him, striking out of evidence given by him, and the (d) the summons served upon defendant was admission over his objections of evidence of- made returnable at an impossible date, to fered by appellee for the reasons set forth in wit, on the 29th day of January, A. D. 190the abstract, is too indefinite to require consid-at 2 o'clock p. m.; (e) said justice had certieration on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 758.*1 4. TRIAL (§ 256*)-INSTRUCTIONS-REQUESTS. Where a party to an agreement for the equal division of hay produced on premises relied on a subsequent agreement calling for a division by stacks, and the adverse party denied any subsequent agreement and division thereunder, a charge that to find for the party it was necessary to find that a division was actually made under the subsequent agreement which did not call for a division according to quantity, and that unless the subsequent agreement was perfected by each accepting his share thereunder it was invalid as varying the original contract, was sufficient in the absence of any requested charge as to the effect of the subsequent agreement and division thereunder. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 628-641; Dec. Dig. § 256.*] 5. TRIAL (§ 255*)—INSTRUCTIONS—REQUESTS— NECESSITY. A nondirection by the court in its instructions is not reversible error unless proper instructions have been requested and refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.*] fied in his record that the summons was made returnable on the 29th of January, 1906; (f) it does not appear by the said transcript of record when, where, or how the summons in said cause was served, nor upon whom it was served; (g) on January 29, 1907, at 2 o'clock in the afternoon, without the presence of defendant and without waiting one hour or any time whatever, the defendant not appearing, the plaintiff appearing, on his motion the said cause was adjourned to the 5th of February, 1907, at 2 o'clock; that at 2:35 on said day the defendant, by his attorney, appeared and was informed by said justice that said cause had been continued to February 5, 1907; (h) at 2 o'clock in the afternoon on the 5th of February, 1907, the plaintiff appeared before said justice, the defendant did not appear, and without waiting one hour or any time the justice gave judgment for plaintiff and against the defendant for the sum of $160 and costs; (i) at 35 minutes after 2 o'clock of the afternoon of Feb Coun-ruary 5, 1907, the defendant, by his attorney, Appeal from County Court, City and ty of Denver; Chas. McCall, Judge. Action by William R. Tipton against Jacob Downing. From a judgment for plaintiff, defendant appeals. Affirmed. Ralph E. Stevens, for appellant. H. W. Spangler and D. B. Kinkaid, for appellee. appeared at the office of said justice, and Waited until 8 minutes before 3 o'clock, when he was informed by said justice that said cause was called at 2 o'clock and judgment given against the defendant by default; (j) it does not appear from the record or in any manner that the cause of action in which said judgment was rendered arose in the county of Denver, or that the said plaintiff lived or resided in the county of Denver-and all the foregoing it was stated the said defendant was ready to verify and prove in court. HILL, J. Appellant, Jacob Downing, was the owner of a farm, in Jefferson county, about 200 acres of which were in alfalfa. During the month of June, 1905, he arranged with the appellee, Tipton, to cut this hay and put it in stacks; they were then to measure The record shows the defendant was lawit and divide it equally. This contention fully served in the form and manner progrows out of the manner in which the hay vided by statute. Most of the contentions was put up, its division, etc. This action above made were in somewhat similar lanwas brought by appellee before a justice of guage presented by a similar motion in the the peace to recover damages against appel-case of Charles v. Amos, 10 Colo. 272, 15 Pac. lant. Judgment was secured by appellee; ap-417, which cited with approval the case of Wyatt v. Freeman, 4 Colo. 14, which case fol- | agreement, proceeded to appropriate and dislowed the rule laid down in certain Illinois cases under a similar statute; in which cases it is held that, though the justice has no jurisdiction of the person of the appellant, by appealing and filing his appeal bond he brings himself within the jurisdiction of the appellate court. Under the provisions of section 2687 of Mills' Annotated Statutes and by the past rulings in this jurisdiction in the cases of School District No. 38 of Boulder Co. v. Waters, 20 Colo. App. 106, 77 Pac. 255, C. C. R. Co. v. Caldwell, 11 Colo. 545, 19 Pac. 542, Schoolfield v. Brunton, 20 Colo. 142, 36 Pac. 1103, and Glatzel v. Binschadler, 21 Colo. 193, 40 Pac. 352, appellant, by appealing from the judgment of the justice, and after the overruling of his motion in the county court, by proceeding to trial upon the merits, waived all irregularities in the proceedings by which he was brought into court, and has relieved us from their consideration; none of which were raised in the justice's court, and no objections were made at the time to any proceedings had there. The second group of assignments relates to the findings and the verdict of the jury. The evidence was conflicting but there is sufficient evidence to support the verdict rendered; when such is the case, it is not the province of this court to disturb it. The assignments of error and the argument of counsel pertaining to the admission and objection of testimony are too indefinite to receive consideration. The complete argument in the brief upon this subject is as follows: "Appellant claims prejudicial errors against him on each and every one of the rulings of the court against him in exclusion of evidence offered by him. striking out of evidence given by him, and the admission over his objections of evidence offered by appellee, for the several reasons set forth in the abstract." If counsel have not the time or are not willing to make specific contentions concerning erroneous rulings pertaining to evidence and point out wherein the same are wrong, that duty does not devolve upon the members of this court to perform it for them, so as to make rulings thereon. Complaint is made to the giving of a portion of one instruction. The portion complained of reads as follows: "It will be necessary to find that there was a consideration for this new agreement; that is, that the division was actually made and perfected according to the subsequent agreement, each party taking his share of the hay according to the subsequent agreement." Both parties agree the original contract was that each should receive one-half of the hay which was to be divided after it was stacked. It is claimed by appellant that there was a subsequent agreement made between the parties whereby the division was made by stacks and not by measurement of amounts, and that they agreed which stacks each should take, and that appellant, relying upon this pose of the stacks which it was agreed he |