
    Lawrence vs. Bridleman.
    If the defendant in detinue plead the statute of limitations, and avers that the cause of action did not accrue within three years, and the plaintiff reply that the cause of action did accrue within three years, the onus of proving the issues is upon the plaintiff.
    The statute of limitations applies between mortgagee and mortgagor, in a suit at law brought to recover the mortgaged property by the mortgagee against the mortgagor. The legislature have made no exceptions, and the courts can make none.
    The defendant on 10th January 1825, mortgaged a negro man Pompey, to secure the payment of $500, for which amount the defendant had executed a note to S. Owen, and the note had come to the possession of Lawrence by assignment.
    Lawrence brought an action of detinue against the defendant for the negro on the 6th February 1830. The defendant pleaded the statute of limitations of 1715, ch. 27, sec. 5,
    
      There was a special replication to this plea, but the judge, on motion of defendant, ordered it to be stricken out, and a general replication to be filed.
    On the trial before the jury, plaintiff read the mortgage deed, and proved that the boy Pompey was in possession of defendant before and after the bringing this suit, and this was all the evidence.
    There was no evidence that the defendant had been in possession of the boy three years before the suit was brought. It was therefore believed that the defendant had not proved himself within the protection of the statute, even if it would apply. But the judge told the jury, that the statute of limitations would be a bar to the plaintiff, if he (plaintiff) had not proved himself to be in possession within three years before the institution of this suit. For, said he, the form of the issue throws the proof upon the plaintiff. The plea is, I have not detained within three years, which is negative, and throws the proof upon the plaintiff.
    The plaintiff supposed he had proved his part of the issue, when he showed that defendant was in possession before and after bringing the suit, and of course at the time.
    
      Gibbs and Rucks, for plaintiff in error.
    We need not cite authorities to this court, that a party, to bring himself within the statute of limitations, must prove a continued and uninterrupted possession, for the whole time specified in the statute. The law will not prove it for him; he must prove it.
    The judge says the statute of limitations will run in favour of a mortgagor against a mortgagee. This is not the law. 4 Conn. 417,367. T Wash. 14. 4 Bacon, 473-4. Angel on Limitation, 111, 118. 1 Vernon, 132. 5 Com. Digest, 35,14, 779.
    The defendant, in joining in error, shows that he intended to insist that the plaintiff did not detain the negro before the suit brought. Answer — no such question was made in the court below. This court will not decide a cause here, upon a question of evidence not made below.
    A mortgagor in possession is not entitled J;o notice to quit; but may be sued in ejectment. 4 Kent, 149, and cases.
    
      A. J. Marchbanks, for defendant in error.
    The defendant in error insists, that this cause was correctly determined in the court below,'and that the result would have been the same, as well without as with the plea of the statute of limitations.
    In this action, under the general issue it devolves upon the plaintiff to prove a general or a special property in the subject matter of- the action. 2 Philips, 118. 2 Starltie, 492. The only evidence of title made hy the • plaintiff, was a paper in the form of a mortgage, attested' by only one witness, and which has never been registered; nor is there any proof that possession accompanied the pretended mortgage; therefore it cannot communicate any legal right to Lawrence, for the reason that the act of assembly of 1807, ch. 85, (1 Scott, 1068,) requires the attestation of two witnesses.
    Upon the issue of the statute of limitations, the court did not err in charging the jury, “that if Bri-dleman retained the possession of the negro after the execution of the mortgage, without an agreement with Lawrence, that he could not be considered in a stronger point of view than a trustee by implication. See Adams on Ejectment, 106.
    Nor did the court err in charging that in such a case the statute would apply. To ascertain whether it will apply or not, it will be important for the court to enquire, first, what is the cause of this action". The declaration answers the enquiry, by saying it is the detention of the pegro; and secondly, when did that cause of action ac-erue. The mortgage was executed on the 10th day of January 1825; it was absolute, and did not reserve the possession to Bridleman an instant after its execution, and consequently the legal title and right of possession instantaneously vested in Lawrence, and he could have brought his action immediately for the recovery of the possession. Erskin vs. Townsend, 2 Mass. Rep. 435. 5 Bacon’s Ab. 116, note, b. 2 Thomas’ Coke, 43, note, 3. 1 Powel on Mortgages, 171. And he could have maintained his action without demand. 1 Powel, 176. In all of the books where it is said the possession of the mortgagor after the mortgage, is in the possession of the mortgagee, it is said upon the supposition of a clause being inserted in the mortgage reserving the possession to the mortgagor, or that he retains it by contract with the mortgagee. Angel on Limitations, 111, 116. 1 Powel on Mortgages, 171. 5 Bacon, 116, note, b.
    
    In one or two old books it is said, that if there be no reservation of possession by the deed to the mortgagor, and he retains the possession, he does it by the implied consent and acquiescence of the mortgagee; but no case can be. found in any book, old or new, where that point was raised or decided; it is a loose expression made without authority and without reason. How is the possession the mortgagee’s1? Is it consistent with his right? Is it consistent with his interest? Is it consistent with the mortgage deed? Is the mortgagor’s possession anymore consistent with the right of the mortgagee, than the possession of a vendor is with that of the vendee after a bargain and sale", or that of a borrower and lender, a bailor and bailee? Is the mortgagor’s possession after the execution of a mortgage, absolute on its face, more consistent with the right of the mortgagee, than the possession of one who receives money expressly for the use of another, and retains it? In all of the instances given, the courts have decided that the statute will apply. See Kane vs. Bloodgood, 7 Johnson’s Clu Rep. Ill: M’Ginnis vs. Cocke and Jack, Martin and Yerger’s R. 361. In M’Ginnis’ case, Stone received the „ money as an agent by express contract, and the court ap-phed the statute. Notwithstanding the implied relationship between mortgagor and mortgagee, the mortgagee is permitted to sue the mortgagor for possession at any time, and that without demand. 1 Powel, 176. If the possession of the mortgagor was lawful, no action could he sustained until demand made. 2 Philips, 118, notea. In M’Ginnis’ case, the court decided that the trusts to .which the statute did not apply, were those that a court of equity had exclusive jurisdiction over, and that the bringing an action at law, was conclusive that the claim sued upon was of such a character as to admit of the application of the statute. In 1 Lord Raymond, 710, it is said, that if no interest be paid within the time limited for bringing suit, the statute will apply. Here no interest was paid. In the case of Bedford vs. Wadé, (17 Yes. 94,) it is said, if mortgages are not expressly excepted by the statute, they fall within it.
    These authorities show, that the statute of limitations will run against the mortgagee, in a suit at law against the mortgagor, when the possession of the mortgagor has been adverse for three years. The proof shows that Lawrence’s cause of action, if he had any, accrued on 10th day of January 1825, the time the deed was made; he brought his suit 6th January 1830; more than three years have elapsed when he could sue, consequently the statute of 1715, ch. 27, sec. 5, operates to defeat his claim.
    The court did not err in charging the jury, that the onus of proof upon the plea of the statute was upon Lawrence. Philips’Evidence, 157. Nor. Peake, 223. Nor did the court err in striking out the special replication; the matters replied could have been given in evidence under the general replication, but if not, there was no exception taken, and none can be taken in this court, that was not taken in the court below. Gregory vs. Allen, Martin and Yerger, 77.
    A mortgagee has three remedies; he can first file a hill to foreclose; secondly, he can bring his action of debt or covenant for the money. To these suits there is no limitation by law, and are only barred by the presumption of payment; and thirdly, he can sue at law for the thing mortgaged. In the latter instance there is a limitation, and if he elects it, he must take it with its limitation. 1 Powel on Mortgages, 204, note 1.
    If the court in the absence of a contract, presume that Bridleman retained the possession after the mortgage, by Lawrence’s consent, then, before Lawrence could sustain his action, he would have to demand the possession of Bridleman. 2 Philips, 119, note a. No demand was made; therefore, the judgment must he affirmed.
   Peck, J.

delivered the opinion of the court.

This court is of opinion, 1. That when the defendant in detinue pleads the statute of limitations, and avers that the cause of action did not accrue within three years, and the plaintiff replies that the cause of action did accrue within three years, and tenders an issue to the country, the burthen of proof lies upon the plaintiff: first, to establish the cause of action itself, by showing a right in himself, and possession in the defendant; and secondly, the commencement of the action according to the allegation in his replication, to wit, within three years. 2Starkie,888.

2. That in all cases where an action at law can be prosecuted, the action is barred by the express words of the act of 1715, ch. 27, sec. 5. In this act the legislature has made no exception in favour of a mortgagee, and therefore the court can make none; whenever the situation of a party is such, as in the opinion of the legislature, to furnish a motive for excepting him from the operation of the law, the legislature has made the exception, and it would he going too far for this court to add to those exceptions. M’Ginnis vs. Cocke and Jack. M’Iver vs. Regan, 2 Wheaton, 29. We perceive no error in the charge of the court in this cause, and therefore affirm the judgment.

Judgment affirmed.  