Opinion by

If it be true as contended for the appellee, that the bank was unauthorized to pay the check of the appellee without the genuine endorsement of Carlisle or his authority, and that the bank by paying it to Hamilton who endorsed it in Carlisle's name as by Carlisle Hamilton and Carlisle, incurred responsibility to the appellee, which he might have enforced. We are satisfied from the evidence that he waived his right to do so by taking up the check on the 3d of January, 1866, and assenting to the charge for the payment against him as shown by his permitting his account with the bank, including that charge, to e .balanced on his passbook without objection, and especially so, as he seems to have acquiesced in the transaction for nearly three years after being informed by Carlisle that he did not authorize the endorsement.

Wherefore the judgment is reversed and the cause remanded for a new trial consistent with this opinion.