¶1 The only question presented by this record for our consideration is, whether there was error in the judgment pronounced by His Plonor? We think there was. The defendant pleaded the statute of limitations and to avail himself of that defence, he proved that he was surety on the sealed note sued on. 'But that is not sufficient'to-make out such a defence to an action on a sealed note, where'it does- *146 not appear upon the face of the instrument otherwise than that the obligors are all principals.
¶2 The ease of Goodman v. Litaker, 84 N. C., 8, was very like this case. The defendant there pleaded, as here, that he was only surety, and the statute of limitations; and as in this case were payments made by the defendant's co-obli-gor upon the bond in suit, within ten years after the date of the bond. It was held in that case that where the defence set up is, that the party sued is only a surety and the fact of his suretyship does not appear from the instrument signed by him, he must, in order to derive any advantage therefrom, prove that the creditor had knowledge of the surety-ship. See also Welfare v. Thompson, 83 N. C., 276.
¶3 The defendant in this case stopped short with his proof. The defence of being surety cannot avail him under the circumstances of the case. There should have been another issue submitted to the jury to the effect; “ Did the plaintiff know that the defendant Moore was only surety to the bond ? ” Without such an issue and. a finding upon it by the jury in the affirmative, it was error in the court to pronounce a judgment in favor of the defendant Moore.
¶4 There is error. Let this be certified to the superior court of Mecklenburg county that a venire de novo may be awarded to the plaintiff.
¶5 Error. Venire de novo.