The opinion of the court was delivered,
by
Sharswood, J.Upon an execution on a judgment against the Bear Mountain Franklin Company, the sheriff levied upon four mules and other personal chattels, which were claimed by the Tremont Coal Company; and thereupon a feigned issue was awarded by the court to try the title under the 9th section of the Act of April 10th 1848, Pamph. L. 450, relating to process issuing from the courts of the city and county of Philadelphia and the county of Luzerne, and since extended to all other courts in the state by the Act of March 10th 1858, Pamph. L. 91. The Tremont Coal Company were properly made the plaintiffs in the issue, and on them devolved the burden of proving their title. It is an admitted fact in the cause — so stated on the notes of the evidence returned with the record — that in January 1866, when the debt was incurred on which the judgment was recovered, the goods levied on were in the use and possession of the Bear Mountain Franklin Company. This was undoubtedly primá facie evidence that the title was in them. The evidence of the plaintiffs *387consisted of an agreement bearing date March. 30th 186.6, between William Schmoele and Henry Schmoele of the first part and Z. Batdorff of the second part, which recites that the Tremont Coal Company in September 1864 had leased their colliery at Donaldson, till then operated by J. A. Dutter & Co., to the parties of the first part for the term of ten years, and that the said parties of the first part had purchased from the said J. A. Dutter. & Co. all their personal property in said colliery, and then transfers the lease and personal property to Z. Batdorff, the party of the second part. Then follows an assignment, dated April 2d 1866, from Batdorff to them. This was all the evidence which the plaintiffs gave of any title in them to the goods levied on. It is too plain for argument, both upon reason and authority, that the recital in the agreement was not evidence against the defendant in the feigned issue any more than the declaration of the parties to the agreement in pais would have been: Penrose v. Griffith, 4 Binn. 231; Dean v. Connelly, 6 Barr 239. It is certainly no answer to this to say that because William Schmoele was the president, and Henry Schmoele one of the directors, they were in fact the Bear Mountain Company. They did not profess in the article to transfer the title of the company, if it had any, but claimed it as their individual property and sold it as such. There was not only the admission before referred to that the goods were in the use of the corporation at the time the defendant below worked at the colliery, but there was also evidence that he as well as the other men employed there were settled with by tickets issued in their name. There was nothing in the cause to contradict or explain this but the recital in the article of agreement. If the fact was that William and Henry Schmoele individually owned the goods, and had hired, loaned or leased them to the company at that time, it was incumbent on the plaintiffs to give some competent proof of it. Without it they had made out no case. This renders it entirely unnecessary to consider whether the defendant below had a lien on the property under the local Act of April 11th 1862, Pamph. L. 479, applying to the counties of Schuylkill, Bedford and Blair. We do not of course mean to say that there was error in the charge of the court on this subject; if there was it did the plaintiffs no injury, for they had shown no right to a verdict in their favor, even if no such lien existed.
Judgment affirmed.