This was an action of unlawful detainer by Andrew Wilson to recover from Zink & Son the possession of a house and lot situated in the city of Wheeling. It was admitted that the legal title to the said property was in Wilson. Wilson was allowed by the court to give in evidence to the jury a notice to quit the premises on the 1st day of April, 1867, which notice was served on the defendants on the 31st of December, 1866. It is claimed nowhere, that it was error to allow this notice to be given in evidence to the jury. This notice along with' the admission of title to the property in Wilson showed his prima facie right to recover, and there could be no error in admitting it to go to the jury.

It is claimed that it was error in the court to refuse to permit the defendants below to be sworn in their own behalf under the act of February 7, 1868.

There had been a former jury in the cause which had rendered a verdict against the defendants, but which verdict was set aside by the court without any judgment being pronounced upon it and a new trial awarded.

*506It is claimed by the defendant in error that the verdict of the jury is equivalent to a judgment in the meaning of the act of February 7, 1868, and that the act must be strictly construed. I admit that the act should be strictly construed, but in construing it strictly we must necessarily keep in view the distinction between a “verdict” and a “judgment,” -and unless a technical judgment has been rendered, and a new trial awarded, a party may be allowed to testify in his own behalf. No such judgment having been rendered in this case the defendants below should have been allowed to testify in their own behalf, and it was error to refuse to allow them to do so.

I cannot see that there was any error in refusing to allow the reading of the summons issued by the municipal court of "Wheeling, because that case had nothing to do with the case before the court.

There was no error in permitting Wilson to give in evidence his notice of the 24th of October, 1867, because the prima facie case made on his notice proved to have been served December 81st, 1866, had been rebutted, nor was there any error in allowing the plaintiff below to proceed on his case without producing his written lease, because the said plaintiff had made a prima fade case complete without his lease.

For the error in refusing to allow the plaintiffs in error to testify in their own behalf in the court below, the judgment ■ complained of will have to be reversed at the costs of the defendant in error, and the cause remanded for a new trial to be had therein.

Judgment reversed.