tion of his account with them at the time of the presentation of the checks for payment. Banks are required, and for their own safety are compelled, to know at all times the balance to the credit of each individual customer, and they accept and pay checks at their own risk and peril. If, from negligence or inattention to their own affairs, banks improvidently pay when the account of the customer is not in a condition to warrant it, and if by mistake a check is paid when the drawer has no funds, the bank must look to the customer for rectification, not to the party to whom the check was paid.

The supposed mistake relied upon in argument is stated in the pleadings as follows: "That such bill of exchange was so executed and delivered as aforesaid, by defendant, under a mistake of fact, and that the said Caldwell did not have, at the time of the making and delivery of the said bill of exchange, in the hands of the defendant, funds to pay the checks for which said bill of exchange was given, and that defendant discovered said mistake at, to wit, the hour of one o'clock on the afternoon of the twenty-eighth day of December, 1883."

The character of the supposed mistake, as stated in pleading and shown in evidence, was such as to preclude appellee from availing himself of it as a defense. It being the direct result of carelessness and inattention to his own affairs, there can be no relief at law, and even in equity courts will seldom, if ever, relieve a man from the result of a mistake attributable to negligence or want of diligence in his own affairs: Kerr on Fraud and Mistake, 407; Beaufort v. Neeld, 12 Clark & F. 248; Leuty v. Hillas, 2 De Gex & J. 110; Western R. R. Corp. v. Babcock, 6 Met. 346; Ferson v. Sanger, 1 Wood. & M. 138; Wood v. Patterson, 4 Md. Ch. 335.

An examination of the evidence shows that it utterly failed to support the allegation in the answer in regard to a mistake.

S. G. Devenish, in substance, testified that at the time of the presentation of the Caldwell checks, on December 27th, for which a draft was drawn, Caldwell was a customer of his bank; that he had no money to his credit in the bank; that prior to that date, on December 19th, Caldwell had left with the bank for collection a check on the First National Bank of Leadville for $150, which he represented would be paid; that relying upon such assurances as to the check for $150, he accepted the checks of Caldwell on the 27th for $312, and drew the draft in controversy; that at one o'clock, P. M., of the 28th,

he found that the representations of Caldwell in regard to the Leadville check of $150 were false, and the check unpaid; that he then caused the checks of Caldwell to be returned to Freeman, and requested a return of the draft. It is apparent at once that the supposed mistake attempted to be proved was not the one alleged in the pleading. It is perhaps needless to say that the supposed mistake established by the evidence is not such a one as to be cognizable at law as a ground for the rescission of an executed transaction between the parties to this suit. It was not a mutual mistake to which appellant was a party, or of which he was supposed to have any information. It seems, at most, when explained, a case of misplaced confidence of appellee in the statements of a customer on the strength of which money was advanced to the customer and paid to appellant. Such mistakes are not such as are defined as mistakes in the books and remedied in courts.

We do not see how the last special defense, viz., that Caldwell afterwards deposited large sums of money which appellee, relying upon the promise of Freeman to return the draft, paid out on other checks, can aid him. Mr. Devenish testified that on the second or third day of January, 1884, about midday, he informed Freeman of his surprise at having received a notice of protest of the draft in question. Consequently, he knew at that time that the draft was being retained by the appellant, and he held for its payment on refusal of the German National Bank to accept it; and on the 20th of January he knew it had not been returned, nor he relieved from his responsibility on his outstanding draft. Why did he not protect himself when he had an opportunity and full knowledge of the facts? If appellee considered the transaction rescinded, and the checks of Caldwell unpaid by the draft, good faith required that he should have paid them from the deposited funds, knowing them to be outstanding and unpaid. His failure to protect himself when opportunity offered cannot well prevail as a defense in the action.

The defense made is not tenable on the ground of mistake, and if allowed to prevail could only succeed upon full proof of the agency of Freeman, and his authority to bind appellant by an agreement to rescind, and proof that he did make the contract and promised to return the draft. The testimony fails to establish any such agency. It shows him to have been a merchant to whom appellant sent checks on the bank

of appellee for collection, which he collected, and remitted the proceeds, generally in drafts drawn upon its correspondent, the German National Bank. Appellee did not attempt to prove anything further in regard to the scope of Freeman's agency. Freeman testified that that was the only agency or connection he had with appellant.

The testimony also fails to establish any agreement of Freeman to rescind and return the draft. The interview with Freeman was not by Devenish, as he was indisposed, but between Mr. Uhren, representing Devenish, with Mr. Freeman.

Mr. Uhren testified as follows: "I took the checks, with that mark on the upper left-hand corner in pencil, and the signature had been canceled; that is, by drawing a line across it with a pen. Took them over to Mr. Freeman and explained the circumstances to him, very shortly, as I was very busy. He took the checks. He said he could not give me the draft, because it was in the post-office, but that the matter would be all right. I left the store and went home, and heard no more about it until it was protested; and afterwards the suit was brought."

"The Court-Did he say to you that he would make the matter all right? A. I understood the draft would be returned. He could not give it to me at that time, because it was in the post-office. I do not think he said in express words, 'I will have the draft returned.' I cannot say exactly what his language was at this time."

The testimony of Mr. Freeman was as follows: "I am under the impression that it was a couple of days after the defendant Devenish paid the Caldwell checks that Mr. Uhren brought the said checks back and left them with me. I know it was one day, and I think it was two. I did not, at the time Mr. Uhren returned the Caldwell checks to me, or at any time afterwards, agree to return the draft in controversy to the defendant. I believe I said I would write down about it, which I afterwards did. I did not ever accept, for the plaintiff in this action, the said Caldwell checks from the defendant Devenish, or from Mr. Uhren as his agent. I told Mr. Uhren at the time he left the checks with me that I had sent the draft off. I did not, on the 2 or 3d of January, 1884, at the defendant's bank in Tin Cup tell him that I was surprised that his draft had been protested, and that it would be all right as soon as the plaintiff received the letter, for at that time I had not written the plaintiff about the mat

ter. It was about a week afterwards that I wrote.....I did not, as agent of the plaintiff, accept the Caldwell checks given for the draft in controversy. I had no authority from plaintiff to accept from defendant the said Caldwell checks for said plaintiff."

For the reasons above given, we advise that the judgment be reversed and the cause remanded.

RICHMOND, C., and BISSELL, C., concur.

Per CURIAM. For the reasons stated in the foregoing opinion, the judgment of the court below is reversed.

BANKS AND BANKING-PAYMENT OF CHECK BY MISTAKE. - A bank is bound to know the condition of its depositor's account; and if it pays money out under a mistake in this respect, it must abide the consequences: Manufacturers' Nat. Bank v. Swift, 70 Md. 515; 14 Am. St. Rep. 381, and note.

BECKETT V. CUENIN.

[15 COLORADO, 281.]

JURISDICTION-SERVICE BY PUBLICATION. -Jurisdiction over defendant is acquired in cases of service of summons by publication only when the statutory requirements are successively and accurately taken.

JURISDICTION - ORDER FOR SERVICE BY PUBLICATION. — An order for publi. cation of summons must be based upon an affidavit by plaintiff showing affirmatively an existing cause of action against defendant; otherwise the court acquires no jurisdiction over defendant. JUDGMENTS-COMPLAINT NECESSARY TO SUPPORT.

- A judgment of a court of record, not based upon a complaint or written statement of the cause of action, is void.

THIS action was commenced by filing in court an undertaking and affidavit for attachment. A writ of attachment and a summons issued, the latter reciting that plaintiff demanded judgment for one thousand dollars, and interest, and for attorneys' fees, and for costs of suit. Afterwards, plaintiff filed an affidavit, as follows:

"Dexter T. Sapp, being duly sworn, says that he is the attorney for the plaintiff in the above-entitled cause; that this action is brought to recover of defendants the sum of $1,120.97 upon two promissory notes of $500 each, dated August 14, 1884, with interest thereon at the rate of ten per cent per annum from said date, and also ten per cent attorneys' fees, as provided in said notes; that said William D. Beckett and John M. Beckett compose the copartnership of said Beckett Broth

ers; that upon the seventeenth day of July, 1886, a writ of attachment was issued in this cause, and placed in the hands of the sheriff of said Gunnison County for service; that on said day a writ of summons was issued in this cause in due form, subscribed 'Brown and Sapp, attorneys for plaintiff,' which summons was placed in the hands of the sheriff of Gunnison County for service upon said defendants; that the defendants William D. Beckett and John M. Beckett now reside at Hastings, in the county of Clay, state of Nebraska, as deponent is informed by Louis Boisot, of Gunnison, Colorado, said Boisot having been the attorney of said Becketts, and as deponent also believes, from having received letters from said defendants which were mailed at said Hastings; that at no time since the issuing of summons in this case has either of said defendants been within the state of Colorado; that the sheriff of Gunnison County has returned to this court the summons issued herein, and placed in his hands for service as aforesaid, with his indorsement thereon to the effect that he cannot find the said defendants in his county; that personal service of said summons can be had upon said defendants at said Hastings, in the state of Nebraska, but cannot be had upon either of them in the state of Colorado, as deponent is informed as aforesaid, and as he believes; that the defendants are a necessary and proper party to the action, for the reasons,-1. That there are no other defendants, and no person or persons liable for the debt sued for; 2. That by virtue of the writ of attachment issued in this cause, real property owned by one of the defendants, and situate in the county of Mesa, in this state, and debts owing to said defendants, have been attached by garnishment in the said county of Gunnison, and without some kind of service of summons in this cause it will be impossible to have the property and debts so attached applied towards the payment of the claim in this cause sued for. Wherefore affiant asks that an order of court may be granted that the service of said summons be made by the publication thereof.

"Subscribed and sworn to before me this twenty-first day of September, A. D. 1886. EDWARD P. COLBORN,

"Judge and Acting Clerk."

Judgment for plaintiff, and defendant appeals. Other facts are stated in the opinion.

Bell, Goudy, and Boisot, for the appellants.