detjvered tee opinion, oe the court.
The bill of exchange upon which this action was brought was drawn by J. D. Hays on and accepted by Howard,-indorsed by- Hays and discounted by appellee bank. Moore was cashier of the bank when the bill was discounted and when it matured. On the former appeal of this case to this court it was decided that Moore, and Hays wore partners, doing business under the firm name “J. D. Hays,” and that the bill was drawn and discounted in the course of the partnership venture. While the case came here on the action of the court in sustaining a demurrer to the petition, yet the amended answer did essentially change the facts upon which this court so adjudged; and the case, so far as the question of partnership is concerned, is res judicata. The bill at maturity was not protested, but this court (Citizens Saving Bank v. Hays, 16 Ky. Law Rep., 505) held that on the facts as then presented by the pleadings it was an inland bill of exchange and that protest was unnecessary, but that drawers and indorsers of such bills were entitled to *204notice of non-payment, but as Moore was himself drawer on the paper, as well as Hays, and interested as a partner in the business, there was no reason for notice, as Moore knew of the date the paper matured and the fact of its nonpayment. On a return of this case Hays filed an amended answer, in which a section of the charter of the appellee is quoted, which in express terms, places bills like the one in suit upon the footing of foreign bills of exchange. This, answer presents a question which was not considered by the court on the former appeal. To charge drawers and indorsers on foreign bills of exchange, there should be a protest and notice of it given to them. The question is whether Moore, being by reason of the partnership, a drawer and indorser of the bill, with a knowledge of its dishonor and nonpayment, was there a necessity for a protest and notice in order to hold Hays liable on the bill? We are of the opinion that Hays as the partner of Moore, is not nor can be held liable for any negligence or misconduct of Moore as cashier of the bank. Such a liability was not contemplated by the terms of the partnership, as he in no wise undertook to guarantee the bank against loss on account of the negligence or misconduct of Moore in the official position of cashier. The partnership venture had no relation to such a matter. Hays’ liability on the bill turns upon the question as to whether the knowledge Moore had of the dishonor and nonpayment of the bill rendered a protest unnecessary in order to charge the members of the firm on it. If Moore had been alone the drawer and indorser of the bill, it seems to us that a protest of it would have been entirely unnecessary to charge him with liability. If *205under such circumstances, he would have remained liable •on it, why are not he and his partner liable, under the facts -of the case, as a notice to one partner is a notice to all t'he members of the firm. We think, from another view of the case, the members of the firm can not properly claim to have |been discharged from liability. 'Moore occupied 'a dual position. As cashier he could have had the bill protested. As a partner he could have waived protest for the firm. The presumption should be indulged that he did waive protest.
The judgment is affirmed.