concurring specially. “An action of assumpsit for money had and received, will not lie, unless- the proof shows *465that the money . . . was actually received by the defendant.” Lary v. Hart, 12 Ga. 422. The proof must show the actual receipt of the money in question. Marine &c. Bank v. Megar, 1 Dudley 83; Whitehead v. Peck, 1 Ga. 146. The stipulated facts show that the sheriff had received $13,465.50 in fines and forfeitures and that the clerk had received $29,557.67 in fines and forfeitures but the evidence does not disclose how much of the $13,465.50 received by the sheriff was allocable to the plaintiff. Neither did the evidence disclose how much of the $29,557.67 received by the clerk was allocable to the plaintiff. The evidence did show that of the total amount, $43,023.17, $1,608.00 was allocable to the plaintiff. A distribution by court order of this entire fund was made, distributing $20,176.58 to the sheriff and $22,846.59 to the county, being a distribution of the fund pro rata according to the proportion of the respective claims of the sheriff and the county to the total funds. Under these circumstances the plaintiff would not be entitled to a recovery because of his failure to show how much he was authorized to receive from the sheriff, unless, under the form of action brought, this amount can be definitely ascertained from the evidence. Ordinarily under the circumstances here the requirement that the sheriff reimburse the plaintiff on a pro rata basis because he had received an unidentifiable portion of a fund could only be granted in a court of equity. The Supreme Court has transferred the case to this court holding that this case is not an equity case. Under these circumstances then, the evidence must be sufficient to prove a case at law for money had and received based upon the implied promise to pay. While the evidence fails to disclose a definite amount of plaintiff’s money received by the respective defendants the evidence does show that the respective defendants, with knowledge that the plaintiff was entitled to priority out of the fund for a definite sum, did receive a pro rata distribution of the entire fund in proportion to the defendants’ claims thereto. The defendants therefore, among them, received all of the plaintiff’s money with knowledge of plaintiff’s prior claim. While, under the evidence, there can be no implied obligation under the doctrine of money had and received, for either of the de*466fendants to pay the plaintiff a particular sum of money, because the evidence fails to show that, yet there does arise an obligation to pay an amount of money which can be ascertained as to each defendant. Having received all of the sum, part of which was plaintiff’s money, with knowledge thereof, on a pro rata basis, the implied obligation under the theory of assumpsit for money had and received is an assumpsit pro rata, that is, that the defendants undertook the implied promise to pay the plaintiff that which it in equity and in good conscience was entitled to, according to the proportion in which the defendants received the fund containing the plaintiff’s money. See 7 CJS 107, Note 66. In my opinion the majority base their conclusion upon an improper application of principles which can only be applied by a court of equity, when it should be based upon the implied promise on which an action at law for money had and received may be maintained.