The jury had before it circumstances that were regarded by the jury as sufficient to demonstrate the inherent improbability of petitioner's claim of a common law marriage on February 2, 1927, and in addition thereto there was shown in evidence other strong circumstances of a nature and tendency legally sufficient to warrant an inference by the jury that the direct testimony of petitioner's alleged witness to her asserted common law marriage was thereby so impeached as to render the testimony of plaintiff's witnesses unworthy of credence. The evidence of petitioner was no doubt sufficient in and by itself to warrant a verdict in her favor had the jury accepted it as true. But on the other hand, there was ample evidence consisting of facts and circumstances of what occurred before and after *Page 544 the alleged common law marriage, that afford legal support for the jury's verdict finding that the petitioner never was married to B. S. Catlett by a common law or any other kind of marriage, as claimed by her and corroborated by her witnesses, Mrs. Dunn and Mrs. Blake.
Sections 4406-4407 C. G. L., 2734-2735 R. G. S., providing for discovery from the parties to a cause on propounded interrogatories and oral examinations by the opposite party before trial, are in pari materia with Section 4372 C. G. L., 2705 R. G. S., relating to the competency of witnesses as affected by interest. The bar of the common law that disqualified, a witness on account of his interest in the result of a cause is preserved in part by Section 4372 C. G. L., supra. It is not lifted by a mere invocation of the procedure authorized by Sections 4406 to 4407 C. G. L., supra, on behalf of an executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor or committeeman unless the answers taken on the interrogatories are offered in evidence in the case against the party disqualified.
Rehearing denied.
DAVIS, C. J., and WHITFIELD, TERRELL and BROWN, J. J., concur.
ELLIS and BUFORD, J. J., dissent.