delivered the opinion of the Court.
Under a count for money had and received, a bill or note is prima facie evidence against the drawer or endorser, although the presumption that the money was received for the use of the holder may be rebutted. 7 Whea. 35. To the common counts here there appears to be no objection. The general issue was on all the counts; and we are to infer from the verdict that the evidence was sufficient to autho-rise it. This Court has decided, that in an action of this description one good count is sufficient to sustain the ver-diet and judgment, (a)
»phe decision of the question raised by the third assignment does not seem necessary to the determination of the case. Evidence independent of the note may have been given under the common counts ; yet it is to be remarked, that even supposing Brown, the first endorser, to be the partner in the firm of Brown and Parsons, there is no good reason why he might not convert his private property into partnership stock, or why both partners should not be responsible on the endorsement in which, as the Record appears, both must be supposed to have united. The assignments of Errors are not sustained.
The disposition to be made of the cause under the peculiar circumstances of this Record remains to be considered.
The transcript brought up by the certiorari, contains three several entries as of March term 1822, entitled Benjamin Torver vs. Williams W. Olds. The order for amendment refers to a case numbered 715. The case first stated is numbered 71; the two last are not numbered, and it remains still uncertain to what case the order for amendment is to be applied. If the defendant in Error thinks it will avail him, a certiorari will be awarded returnable instanter ; and if by the return this matter shall be made sufficiently certain, the judgment will be affirmed; but inasmuch as there was Error in the proceedings when the writ of Error issued, the affirmance must be without damages and at the costs of the defendant. Sellon’s Pr. 407 and 8. 2 Ld. Raym. 897. Tidd’s. Pr. 664.
Rut if the transcript is as complete as it can be rendered by the Record below, the writ of Error must be dismissed.
For the defendant in Error a certiorari, returnable instanter, was then prayed; with which the clerk sent up a third transcript, in which the declaration in the case of Torver vs. *373Brown and Parsons was certified as bearing the number 715, and in which was set out as of March term 1822, a case numbered 714, Torver against Olds, and a verdict and judgment for plaintiff thereon ; and as immediately following on the minute book the entry of a verdict for plaintiff in a case also entitled Torver against Olds, not numbered, and of judgment thereon for plaintiff for $1338 85,}. In certifying the transcript the clerk states, that the judgment succeeding number 714 was marked 71, a figure immediately after the figure 1 appearing to be erased ; and that on his trial docket of March term 1822, there was no case marked number 71.
On the return of this third transcript the judgment was affirmed without damages, and at the costs of the defendant in Error.
Harrison vs. Cassity, ante, p. 291.