after stating the case: There was ample evidence to support the verdict, and on careful perusal of the record we find no good reason for disturbing the results of the trial. It was urged for. error that the court below permitted the filing of a reply to defendants’ counterclaim at the trial term and in ordering a trial on the issues thereby raised. This is a matter that is left largely in the discretion of the trial court, and while such court should be always careful to see that a party is not taken by surprise and unduly prejudiced by being presently forced into the trial of issues which he had no reason to expect or prepare for, there is nothing in this case to show that the discretion vested in his Honor was improperly exercised. The counterclaim of defendant was only one incident in this matter. The cause of action set up by plaintiff embraced the entire *263transaction and fully apprised defendant of all tbe facts relevant to the inquiry, and they were evidently not taken by surprise. As a matter of fact, there was no testimony offered tending to support a charge of fraud against plaintiff, and the counterclaim referred to and made the basis of this exception seems to have been inserted more with a view of “talking back” in the record than with any well-grounded hope of benefit to be derived from it.
It was insisted further', that in the argument of plaintiff’s counsel to the jury improper use was made of the case of Britt v. Penny, reported in 157 N. C., 110, a case involving an issue of fraud and in which the same defendant, George T. Penny, appears to have been an actor.
It is recognized with us — a rule established by express statutory provision — that an attorney may argue the whole case to the jury, both of fact and law, and in the exercise of this privilege counsel have been allowed to state the “facts of another case for the purpose of applying the law of that case to the one in hand,” and only to the extent required for such purpose. S. v. Corpening, 157 N. C., 623; Harrington v. Wadesboro, 153 N. C., 437; Horah v. Knox, 87 N. C., 483.
It is unfortunate for defendant that he has figured in another cause involving an issue of fraud, and on facts not dissimilar to the one at bar, and the propriety of using such a case is at least questionable. "We deem it right to say further, that if his Honor in this instance had denied the right" to counsel, his ruling would have been upheld; but as a matter of law the argument was kept well within the principles of the cases referred t-o and others of like kind, and we have concluded that on this record the question could very properly be left to the decision of the just and learned judge who presided at the trial.
The action of the court in setting aside the verdict on the third issue, or in disregarding it, as immaterial, was entirely proper and worked no legal wrong to defendants. Sprinkle v. Wellborn, 140 N. C., 163.
The fraud having been established, in order to maintain the>. position of holder in due course of the ,$2,500 note, the burden was on the defendant to prove that it was indorsee for value *264before maturity and'without knowledge or notice of the impeaching facts. Manufacturing Co. v. Summers, 143 N. C., 103. There was not only an entire absence of evidence to support the position, but it was not even alleged in the answer that defendant company was indorsee of the notes, the allegation being simply that the company had “taken over” the note. The facts, therefore, embodied in the third issue were irrelevant and immaterial and could well have been disregarded by the court in its judgment. Mayers v. McKimmon, 140 N. C., 640; Tyson v. Joyner, 139 N. C., 69.
The objection that plaintiff in his testimony was allowed to say, in reference to- a foreclosure sale under the mortgage given by him to the railway company, that “on coming to Marion on one occasion he found there was a crooked sale on hand,” may not be sustained. The witness had testified fully and directly to the entire facts of the transaction, tending, if accepted by the jury, to establish a deliberate fraud on the part of defendants, and this expression of opinion, while not in strictness permissible, was too remote, and insignificant to be allowed for reversible error.
On examination of entire record, we are of opinion that the case has been tried on correct legal principles, that an actionable wrong has been clearly established, and the judgment on the verdict in plaintiff’s favor should be affirmed.