— The case has been well argued at the bar; and the judges have enjoyed an opportunity to consider it, with more deliberation, than could be bestowed upon it, during the trial. We are now convinced, that the principal point of law should have been differently presented to the jury. It is clearly in favor of the defendants ; and ought to have been so stated in the charge.
The construction of the agreement, however, is a distinct subject for consideration. The counsel who drew the agreement, are essentially at variance upon its design and meaning; and the court have not formed (nor is it necessary, at this time, that we should form) a decided opinion upon the subject. The intention of the parties to the instrument, will be properly left to the jury, on the new trial; which, for the reason already assigned, it is our duty to award.
New trial awarded.