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 *502operation 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.