Whether there was sufficient evidence to enable the court to find that the value of the annual rents and profits was at least equal to the annual interest on the note, is a question not raised in the report. The evidence on this subject does not appear to have been fully stated in the report. The objections of the plaintiff are to the refusal of the court to rule “that, under the answer and evidence, the annual rents and profits *48could not properly be allowed in part payment of the note; ” to tbe allowance by the court of the defendant’s second amendment; and to the finding that the note had been fully paid, which was reached by debiting the plaintiff with the value of the rents and profits for the three years after he took possession. The supplemental answer, which must be considered as the defendant’s first amendment, alleged that the plaintiff’s testator made peaceable entry upon and took possession of the mortgaged premises on March 17,1859, and continued in said possession for the term of three years thereafter, “when said mortgage was fully foreclosed; ” and that the “ land was of greater value than the amount of said note at the time of said foreclosure, and said note has been fully paid.” No part of the evidence introduced at the trial was objected to as not admissible under the answer, as the answer then stood. This must include the evidence of the value of the rents and profits. When evidence has been introduced without objection upon a matter necessarily involved in taking an account between the parties, and there is nothing to indicate that either party has been taken by surprise, or that the matter has not been fully and fairly tried, there ought not to be a new trial because the pleadings were not in every particular so specific as they ought to have been. The note expressly drew interest. The plaintiff must account, not only for the value of the land, but also for the rents and profits, if he received any while in possession. All this was evident to both parties.
The Pub. Sts. a. 167, § 42, permit amendments at any time before final judgment; and, if the supplemental answer did not, with sufficient certainty, allege that the plaintiff had received rents and profits which ought to be applied toward tlie payment of the principal and interest on the note, it was within the discretion of the Superior Court to permit the defendant to amend his answer, and the original objection, if there were ever anything in it, became immaterial. It does not appear that the plaintiff has in any respect been prejudiced by this action of the court.
Judgment on the finding.