The opinion of the Court was by
Weston C. J.The cause having been argued upon the plea and the demurrer the averments in the plea in bar arising from *210the proceedings had in this Court, in the suit at law by the defendant in equity against the present plaintiffs, must, for the purpose of considering their legal effect, be taken to be true. They have been submitted to the consideration of the whole Court, upon the legal questions raised in that suit. We are called upon to determine, whether they do not legally preclude the plaintiffs from the prosecution of their bill, so far as it seeks a discovery of facts, supposed to be available for their benefit.
The suit, to which we have referred, was a writ of entry to recover seizin and possession of the premises, which the plaintiffs now claim the right to redeem, as the assignees of the original mortgagor. The plaintiff there did not declare as mortgagee, with a view to obtain judgment as on mortgage; and the defendants in that suit were under no obligation to interpose their claim, as assignees of the mortgagor, to restrict the plaintiff to such a judgment. They might do so, according to our practice; and thus bring before the court the question, whether they had any subsisting right of redemption. This was formerly done by special plea, for which the general issue, with a brief statement is now by law substituted.
The present plaintiffs, then defendants, availed themselves of this privilege; and by their brief statement set up their right to redeem ; and thereupon insisted, that the plaintiff could be entitled only to a conditional judgment. This opened and presented the whole field of inquiry, as to the facts and principles, legal and equitable, upon which this right was based. The facts controverted were then settled, upon a fair trial before the jury, to whom the cause was submitted ; and every legal objection to their verdict has been discussed, examined and overruled. By a reference to the opinion of the court, last delivered in that case, ante p. 190, it will be perceived, that in their judgment the claims of the present plaintiffs have not been sustained.
Unless then the court shall open the controversy for further examination, their rights must be regarded as foreclosed. We do not accedeJto^the doctrine, that the plaintiffs can proceed in equity, upon the same subject matter, which they have once submitted to the decision of a court of law. And more especially is this true, where every fact and principle, upon which they rely, as in the *211case before us, was equally available in both courts. The case of Emery v. Goodwin, 13 Maine R. 14, is in point; and it is sustained by numerous authorities, cited for the defendant.
The facts have been definitively settled by the proper tribunal. The plaintiffs have had ample opportunity to present their case to the consideration of the jury and of the Court. In our opinion the plea in bar, if the averments therein are not controverted, is decisive against the right of the plaintiffs to maintain their bill for the discovery of facts, based upon the assumption, that their right to redeem has not been foreclosed. In chancery proceedings however, the plaintiff in equity, if be shall be so advised, may controvert the averments in the plea, and compel the defendant to prove them. “ If the defendant file a plea in bar, and the plaintiff set it down for argument, he necessarily admits the truth of the plea; as much so, as if be had demurred to it; for otherwise, the legal effect of the matter pleaded could not be decided. And yet if the plea be allowed by the Court, the plaiutiff may, notwithstanding his implied admission, reply to the plea, and deny the truth of the facts contained in it, and put the defendant to establish them by proof.” Crawford & al. v. Penn, 3 Wash. C. C. Rep. 484, and the authorities there cited.
In regard to the demurrer, in our judgment, it is well pleaded. The bill sets forth the suit brought by the defendant, to recover seizin and possession of the premises in controversy, and that the plaintiffs thereupon pleaded their right to redeem with a prayer, that if any judgment should be rendered against them, it should be a conditional judgment only, as on mortgage. It thus appears from the bill, that the equity of the case was oponed and submitted to this Court in that suit. How far it had advanced, or what further proceedings were had, is not to be ascertained from the bill. But enough does appear to show, that the plaintiffs have a plain, adequate and certain remedy at law, adapted to the relief prayed for; and that the whole matter had been submitted to a Court of law, and was in a train for final adjudication.
This being disclosed in the bill, wo perceive no sufficient reason to permit the plaintiffs to pursue at the same time a concurrent remedy in this Court, as a court of chancery. It could be admissible only, where the merits could not be fairly tried in a court of *212law. The question is, whether the plaintiffs have a subsisting right in equity, or whether it has been legally foreclosed. That is a point, the determination of which is incident to the powers expressly given by statute to a court of law, when set up and pleaded in a suit brought to recover an estate, in which a right of redemption is claimed. Such was the course of proceedings at law in relation to this estate, as disclosed in the plaintiff’s bill. And upon the whole case we are satisfied, that the matter therein set forth, to which the demurrer extends does not entitle them to relief in this Court, sitting as a court of chancery. The plaintiffs may however, if they shall so determine, reply to the defendant’s plea in bar.