SOMERYILLE, J.
A contingent liability is as fully protected against fraudulent and voluntary conveyances, as a claim which is certain and absolute; and, as often decided, one whose claim accrued from a contract in existence at the time such conveyance is made, is a creditor within the meaning of tlie statute of frauds.”—Fearn v. Ward, 65 Ala. 33; Bibb v. Freeman, 59 Ala. 612; Jenkins v. Lockard's Adm'r, 66 Ala. 377; Brandt on Sur. § 258. The rights of the surety, or other contingent promisor, are regarded, for many purposes, as commensurate in point of time with the date of the suretyship, and not with the date when the surety-actually paid.the security debt for the principal. The claim of the surety, in other words, is considered as having existed, so far as to constitute him a creditor, at the time he incurred the contingent liability, being débikum mpresentí, solvendum in futuro; his subsequent payment of the debt extending back by relation”to that date, although no demand, or right of action, technically accrues until a subsequent date. The surety is thus, in a certain sense, subrogated to the [501]*501rights of the creditor whose claim he has been compelled to pay.—Bump on Fraud. Convey. 488-489; Seward v. Jackson, 8 Cow. (N. Y.) 406; Gannard v. Eslava, 20 Ala. 732; Cato v. Easley, 2 Stew. 214; Jenkins v. Lockard's Adm'r, 66 Ala. 377.
2. This principle applies to a claim of exemption preferred by a debtor, to property sought to be subjected to the satisfaction of a creditor’s judgment. Parties entering into contracts are presumed to have in view such exemption laws and rights as are in force at the date of the contract.—Kelly v. Garrett, 67 Ala. 304, 309; Smith's Ex. v. Cockrell, 66 Ala. 64; Nelson v. McCrary, 60 Ala. 301; Gunn v. Barry, 15 Wall. 610. As against a surety, therefore, who has paid the debt of the principal, the right of the debtor to a homestead, or other exemptions, as to their value and extent are to be determined by the law which was in force when the contract of suretyship was entered into, and not by the law in force when the debt was actually paid; although, by express provision of the statute, the method and remedies for ascertaining and determining such exemptions are the same in each case.—Code, 1876, § 2844; Fearn v. Word, 65 Ala. 33; Kelly v. Garrett, 67 Ala. 309, supra.
The surety debt here created bears date December 4th, 1860; and the exemption allowed, if allowable at all, must be governed by the law in force at the date of its creation, unless it was paid and extinguished by the notes of Mead and Lewis, which are alleged to ha've been taken subsequently by Larkin in satisfaction of his claim against Mead. These notes are two in number, each bearing date December 4th, 1874, and payable to Larkin, in the sum of six hundred and thirty-four 92-100 dollars. They were executed by Mead as principal, with Lewis as his surety.
3. It is clear that the mere-renewal, or novation, of an old debt by a new one, would not affect the exemption rights of a •debtor. But, if the new obligation, taken by way of apparent renewal or extension, creates a different liability by reason of a change of parties, or otherwise, and is received with the agreement that it shall be taken in full payment and satisfaction of the original debt, it would clearly be otherwise. The exemptions of the debtor in the latter instance, as against the creditor, would be measured by the law in existence at the date of the new obligation.
4. Whether a new security of no higher nature, executed by -a debtor, is taken in payment and discharge of a pre-existing debt, for which it is given, is a question of intention,. — 1 Greenl. Ev. § 519. The giving of the debtor’s own note or bill, even though negotiable, does not, according to what is deemed the better doctrine, as settled in this State, operate to discharge [502]*502such debt, unless accepted in absolute payment. Prima, faoier it is considered only as collateral, or additional security; but all the authorities are in harmony as to the proposition, that by express agreement it may be regarded as a satisfaction and a bar.”—Day v. Thompson, 65 Ala. 269.
5. We are also clearly of the opinion, that it may as well be proved likewise by an implied agreement of the contracting parties. Both express and implied contracts are founded upon the actual agreement of the parties, the only distinction between them being as to the mode of proof, or evidence by which they are substantiated. — Story on Contr. § 11. There are, no doubt, some cases so free from ambiguity,.or opportunity for inference, as that a court could legally presume such intention ; but, in all cases of doubt, it is well settled to be a matter proper for the determination of a jury, who would have a right to consider all the relevant circumstances of the case throwing any light upon the question of intention.—2 Parsons Contr. 267; Myatts v. Bell, 41 Ala. 222; 2 Greenl. Ev. §§ 527, 519; Fulford v. Johnson, 15 Ala. 386; Hart v. Boller, 15 S. & R. (Penn.) 162; 1 Addison Contr. § 333 (note 1). It is true that the English decisions have adopted the view, that there must be an express agreement, or else that the bills alleged to have been received in payment must have been negotiated and remained outstanding against the defendant; and some of the earlier American decisions concurred in this doctrine. But, as Mr. Pai-sons observes, the modern authorities seem to be coming together in support of the other view. “ In almost all of the States except New York,” he says, “ we suppose the note or bill of the debtor, or of a third party, may be payment by implied, as well as by express agreement; for there is no reason why the parties should not indicate their intention by actions, as well as by words. Where an implied agreement may be shown that the bill or note was taken in payment, all the facts are to be considered by the jury.” — 2 Parsons Bills & Notes, pp. 159-161, note (t), and cases cited. This conclusion seems fully sustained by the authorities and we, think, is supported by sound sense and good reason. We, therefore, adopt it as the correct rule.
The charge of the court was opposed to this view, and the exception based on it must be sustained.
6. The lien of the execution was not lost or suspended by reason of the plaintiff’s direction to hold it up. Wheiu a writ of fi. fa. is issued and received by the sheriff during the life of the defendant, as was the case here, “it may be levied after his decease, or an alias issued and levied, if there has not been the lapse of an entire term, so cos to destroy the lien originally-created.” — Code, 1876, § 3213. It is clear that mere delay on the plaintiff’s part, in executing his judgment, will not affect [503]*503bis lien, as against tbe defendant in execution, his personal representative, or heirs, who presumptively can not be prejudiced by it.—Dryer v. Graham, 58 Ala. 623. The principle ’ upon which such a lien is lost by mere suspension is that of delay by the plaintiff for the purpose of favoring the defendant in execution, at the expense of other creditors, whose diligence may be thus paralyzed and rendered of no avail.
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SOMERYILLE, J.
A contingent liability is as fully protected against fraudulent and voluntary conveyances, as a claim which is certain and absolute; and, as often decided, one whose claim accrued from a contract in existence at the time such conveyance is made, is a creditor within the meaning of tlie statute of frauds.”—Fearn v. Ward, 65 Ala. 33; Bibb v. Freeman, 59 Ala. 612; Jenkins v. Lockard's Adm'r, 66 Ala. 377; Brandt on Sur. § 258. The rights of the surety, or other contingent promisor, are regarded, for many purposes, as commensurate in point of time with the date of the suretyship, and not with the date when the surety-actually paid.the security debt for the principal. The claim of the surety, in other words, is considered as having existed, so far as to constitute him a creditor, at the time he incurred the contingent liability, being débikum mpresentí, solvendum in futuro; his subsequent payment of the debt extending back by relation”to that date, although no demand, or right of action, technically accrues until a subsequent date. The surety is thus, in a certain sense, subrogated to the [501]*501rights of the creditor whose claim he has been compelled to pay.—Bump on Fraud. Convey. 488-489; Seward v. Jackson, 8 Cow. (N. Y.) 406; Gannard v. Eslava, 20 Ala. 732; Cato v. Easley, 2 Stew. 214; Jenkins v. Lockard's Adm'r, 66 Ala. 377.
2. This principle applies to a claim of exemption preferred by a debtor, to property sought to be subjected to the satisfaction of a creditor’s judgment. Parties entering into contracts are presumed to have in view such exemption laws and rights as are in force at the date of the contract.—Kelly v. Garrett, 67 Ala. 304, 309; Smith's Ex. v. Cockrell, 66 Ala. 64; Nelson v. McCrary, 60 Ala. 301; Gunn v. Barry, 15 Wall. 610. As against a surety, therefore, who has paid the debt of the principal, the right of the debtor to a homestead, or other exemptions, as to their value and extent are to be determined by the law which was in force when the contract of suretyship was entered into, and not by the law in force when the debt was actually paid; although, by express provision of the statute, the method and remedies for ascertaining and determining such exemptions are the same in each case.—Code, 1876, § 2844; Fearn v. Word, 65 Ala. 33; Kelly v. Garrett, 67 Ala. 309, supra.
The surety debt here created bears date December 4th, 1860; and the exemption allowed, if allowable at all, must be governed by the law in force at the date of its creation, unless it was paid and extinguished by the notes of Mead and Lewis, which are alleged to ha've been taken subsequently by Larkin in satisfaction of his claim against Mead. These notes are two in number, each bearing date December 4th, 1874, and payable to Larkin, in the sum of six hundred and thirty-four 92-100 dollars. They were executed by Mead as principal, with Lewis as his surety.
3. It is clear that the mere-renewal, or novation, of an old debt by a new one, would not affect the exemption rights of a •debtor. But, if the new obligation, taken by way of apparent renewal or extension, creates a different liability by reason of a change of parties, or otherwise, and is received with the agreement that it shall be taken in full payment and satisfaction of the original debt, it would clearly be otherwise. The exemptions of the debtor in the latter instance, as against the creditor, would be measured by the law in existence at the date of the new obligation.
4. Whether a new security of no higher nature, executed by -a debtor, is taken in payment and discharge of a pre-existing debt, for which it is given, is a question of intention,. — 1 Greenl. Ev. § 519. The giving of the debtor’s own note or bill, even though negotiable, does not, according to what is deemed the better doctrine, as settled in this State, operate to discharge [502]*502such debt, unless accepted in absolute payment. Prima, faoier it is considered only as collateral, or additional security; but all the authorities are in harmony as to the proposition, that by express agreement it may be regarded as a satisfaction and a bar.”—Day v. Thompson, 65 Ala. 269.
5. We are also clearly of the opinion, that it may as well be proved likewise by an implied agreement of the contracting parties. Both express and implied contracts are founded upon the actual agreement of the parties, the only distinction between them being as to the mode of proof, or evidence by which they are substantiated. — Story on Contr. § 11. There are, no doubt, some cases so free from ambiguity,.or opportunity for inference, as that a court could legally presume such intention ; but, in all cases of doubt, it is well settled to be a matter proper for the determination of a jury, who would have a right to consider all the relevant circumstances of the case throwing any light upon the question of intention.—2 Parsons Contr. 267; Myatts v. Bell, 41 Ala. 222; 2 Greenl. Ev. §§ 527, 519; Fulford v. Johnson, 15 Ala. 386; Hart v. Boller, 15 S. & R. (Penn.) 162; 1 Addison Contr. § 333 (note 1). It is true that the English decisions have adopted the view, that there must be an express agreement, or else that the bills alleged to have been received in payment must have been negotiated and remained outstanding against the defendant; and some of the earlier American decisions concurred in this doctrine. But, as Mr. Pai-sons observes, the modern authorities seem to be coming together in support of the other view. “ In almost all of the States except New York,” he says, “ we suppose the note or bill of the debtor, or of a third party, may be payment by implied, as well as by express agreement; for there is no reason why the parties should not indicate their intention by actions, as well as by words. Where an implied agreement may be shown that the bill or note was taken in payment, all the facts are to be considered by the jury.” — 2 Parsons Bills & Notes, pp. 159-161, note (t), and cases cited. This conclusion seems fully sustained by the authorities and we, think, is supported by sound sense and good reason. We, therefore, adopt it as the correct rule.
The charge of the court was opposed to this view, and the exception based on it must be sustained.
6. The lien of the execution was not lost or suspended by reason of the plaintiff’s direction to hold it up. Wheiu a writ of fi. fa. is issued and received by the sheriff during the life of the defendant, as was the case here, “it may be levied after his decease, or an alias issued and levied, if there has not been the lapse of an entire term, so cos to destroy the lien originally-created.” — Code, 1876, § 3213. It is clear that mere delay on the plaintiff’s part, in executing his judgment, will not affect [503]*503bis lien, as against tbe defendant in execution, his personal representative, or heirs, who presumptively can not be prejudiced by it.—Dryer v. Graham, 58 Ala. 623. The principle ’ upon which such a lien is lost by mere suspension is that of delay by the plaintiff for the purpose of favoring the defendant in execution, at the expense of other creditors, whose diligence may be thus paralyzed and rendered of no avail. It is, therefore, justly confined to junior creditors, mortgagees, or vendees who1 acquire intervening rights during the time the execution may be stayed by order of the plaintiff.—Carlisle v. Godwin, 68 Ala. 131; Dryer v. Graham, supra; Johnson v. Williams, 8 Ala. 529; Dargan v. Waring, 11 Ala. 988; Freeman on Ex. § 206; Turner v. Lawrence, 11 Ala. 427; Patton v. Hayter, 15 Ala. 18; 1 Brick. Dig. 899, § 140.
7. The Circuit Court was fully authorized, in our opinion, to try the issue involving the claim of exemption preferred by the defendants. "We do not think the Probate Court was competent to do so, or even that the contest should have been inaugurated in that court, with the view of having the issue certified to the Circuit Court, under the provisions of sections 2838 and 2841 of the Code.—Kelly v. Garrett, 67 Ala. 304.
.8. The execution against Mead, the decedent, was received by the sheriff during the life of the defendant; and the lien thus created was preserved, though the influence of the statute, by not permitting the lapse of an entire term without the continuous issue and levy of an alias. — Code, 1876, §§ 3213, 2633. Where this is done, the statute operates to authorize a sale of the land by the sheriff, in the same manner as if the defendant in execution were still living.—Jones v. Ray, 50 Ala. 599.
9. The Code does not seem to provide expressly for the regulation in detail of a claim of homestead exemption under these circumstances. Section 2840 has reference only to cases where the decedent did not, at the time of his death, reside on a homestead owned by him; in which event, the widow or minor children are authorized to select the homestead, from any other lands owned by the decedent. We think, upon clear principles of analogy, the provisions of section 2832 of the Code apply to this case with less friction of machinery than those of section 2841. The present execution was issued from a court of record, and necessarily returnable to the same tribunal. The section in question (2832) makes it the duty of the sheriff, or other officer, levying such process on a homestead, “ to summon forthwith three disinterested householders,” whose duty it shall be “to allot and set off the homestead” under certain regulations which are prescribed in detail; a leading and important feature of which is, that the whole proceeding of allotment is measurably dictated according to the election of the owner, with the [504]*504limitation only as to. value and acreage, and contiguity to tbe dwelling-house of the debtor, which with appurtenances is required to be included. These commissioners are required to make a return of their written report under oath, after the execution of this duty, to the sheriff, and he then files it in the court to which the execution is returnable.—Code, § 2832.
This course was not pursued in the present case. The sheriff made no appointment of the requisite commissioners, and hence there was no report which could be made the basis of the exemption contest, which the plaintiff in execution is required to inaugurate. Nor were the defendants, or claimants, afforded any opportunity to make their own selection, within the meaning of our constitution describing the homestead, which is authorized to be exempted from sale under legal process, as one “to be selected by the owner thereof.”—Const. 1875, Art. x, § 1; Code, §§ 2820, 2832.
: The^ court committed no error in striking out the plea to its jurisdiction, and in excluding from the jury as evidence the exemption proceedings in the Probate Court, to which the plaintiff in execution was never a party.
10. The testimony of the -witness Lewis was properly excluded, so far as it related to transactions with the decedent, Mead. He was the surety of Mead on the judgment debt, which is the basis of the present proceeding, and was, therefore, interested in the result. The defendants held title in succession under Mead; and any diminution of the rights of his estate necessarily operates as a diminution of theirs, and e converso. The rule of exclusion established by the statute has been held to embrace many who are beneficial, though not nominal parties to suits.—Code, § 3058; McCrary v. Rash, 60 Ala. 374; Key v. Jones, 52 Ala. 238; Drew v. Simmons, 58 Ala. 463; Louis v. Easton, 50 Ala. 470; Waldman v. Crommelin, 46 Ala. 580; Dismukes v. Tolson, 67 Ala. 386.
The judgment of the Circuit Court must be reversed, and the cause remanded.
BeioKEll, C. J"., not sitting.