delivered the opinion of the court.
This is an action, brought for the use of Markley, a citizen of. New Jersey, upon the bond of the administrators of the estate of Daniel Lord, deceased, who died intestate in 1866, in Cecil County, Maryland, of which State he ivаs at the time a. *491 citizen, and in which, he owned real and personal property. It was commenced in the Circuit Court of that county. The defendants are citizens of Maryland.
Markley filed his affidavit setting forth his citizenship and that of the defendants, and that he had reason to believe and-did believe that, from prejudice and local influence, he would not be able to -obtain justice in the State court. The action wаs thereupon removed to the Circuit Court of the United States for the district. It would appear somewhat singular that a party should aver his inability to obtain justice, from the causes stated, in an action brought for his bеnefit in the name of the State in one of( her own courts, but from the fact that the State is only a formal plaintiff, the actual litigation being between the other parties.
By the law of Maryland the bond of an' administrаtor is taken to the State, but is held for the security of persons interested in the estate of the deceased. The name of the State is used from necessity when a suit on the bond is prosecuted for • the benеfit of a person thus interested, and, in such cases, the real controversy is between him and the obligors on the bond. • If the residence of these parties be in different States, the Circuit Court of the United States has jurisdiсtion.
A statute of Yirginia in force in 1809 required'bonds given by executors for the faithful execution of their duties to be made payable to the justices of the peace of the county where letters were issued, hut allowed suits to be brought upon them at the instance of any party aggrieved; and in
Browne
v. Strode,
A statute of Mississippi in force in 1844 required sheriffs-to exеcute bonds to the-governor of the State for the faithful performance of - their duties, which could be prosecuted by any party aggrieved, until the whole penalty was recovered. In
McNutt
v. Bland,
The declaration, after stating the appointment by the Orphan’s "Court of Cecil County of two of the defendants as administrators, and the execution of the- bond by them as principals, and by the other defendants as sureties, alleges that the administrators took possession of the personal property of the deceased, paid all his debts, and on the 23d of October, 1867, passed their account, showing such payment, and that there was in their hands for distribution the sum of $24,439.43. It also alleges that Markley is a child .and heir-at-law of the deceased, and as such entitled to one-fourth part of the personal estate of which he died possessed; that the administrators have not distributed the surplus in their hands as required by law, but have refused to pay him the portion to which he is entitled, although requested so to do, and that thus they have not discharged their duty.
*493 The defendants filed several pleas, in substance as follows:
1st. That Markley was not one of the heirs of the deceased, and therefore not entitled to a distributive share of his estate;
2d. That the administrators had fully administered upon the estate and had no property of the deceased, and had not had since the commencement of the action;
3d. That the persоnal estate of the deceased was insufficient to satisfy the debts which they had paid;
4th. That before the commencement of the action they had paid to creditors of deceased an amоunt which, with the expenses of administration, exceeded the value of his whole personal estate which had come into their hands; and
■- 5th. That they had compromised with Markley for his claim against the estatе, both real and personal, and paid, him $3,500, which he had received in full satisfaction and discharge of his ■claim.
Upon these pleas issues were joined and tried by the court with a jury, which found a general verdict fоr the defendants. Judgment having bben entered, the case was brought here on writ of error.
On the trial evidence was introduced bearing upon all the issues, and if any one of the pleas was, in the opinion of- the jury, sustained, their verdict was properly rendered, but its generality prevents us from perceiving upon which plea they found. If, therefore, upon any one issue error was committed, either in the admission of evidence, or in the charge of the court, the verdict gannot be upheld, for it may be that by that evidence the jury were controlled under the instructions given.
Upon the issue made by the first plea, evidence was introduсed' to establish a marriage between Markley’s mother and the deceased. It showed that her maiden name was Rebecca Markley; that whilst retaining that name, she lived Avith him, he passing also by the name of Mаrkley; that they had several children; that to her sisters and to one Cross, his son-in-law, he frequently spoke of her as his Avife; that, he so called her in their presence, and she called him her husband, and to the doctоr who attended her during her confinement he spoke of her as his Avife. No Avitness Avas present at any marriage ceremony, *494 or at any contract of marriage between the parties; a marriage wаs inferred from their declarations and their living together. In explanation of his adopting her name of Marldey, one of the sisters states that he .informed her that he desired to keep his marriage secret from his mother, as she was a Quakeress and hostile to his marriage out of the society to which she belonged. On the c 'her hand, it appeared, from other witnesses, that his being married was never communicated tо his family; that neither his brothers, sisters, nor intimate companions and associates ever heard of it; and that his mother .was an Episcopalian, and therefore his professed reason for keeping his marriage secret from her was a mere pretence to conceal his actual relations to the woman with whom he was living, whatever they were. Cross testified that the deceased had admitted to him his marriage, with Miss Markley, and had given the reason mentioned ‘for concealing his own name and taking hers; also, that the deceased had great confidence in "him, and after Rebecca’s death had spoken of his marriage and stated that he owed to her all his early success. One of the defendants, called as a witness for the defence, was permitted, against the objection of the plaintiff, to testify to сonversations with the deceásed about Cross, and that the deceased had expressed great distrust of him, calling him anything but an honest man, and stating, that Cross had been in the penitentiary; and that it had cost 'the decеased $500 to get him out. This testimony Avas clearly inadmissible; it Avas mere heresay. Testimony as to the admissions and conduct of a person cannot be impeached by his statements to a third party as to the character of the Avitness. The evidence, too, was material. It tended'directly to discredit Cross and thus weaken the force of his statements respecting .the asserted marriage. It is impossible to say Avhat effеct it may have had on the minds of the jury on the question of the marriage.
As the case must, for this error, go back for a neAv trial, it is proper to say that, by the laAv of Pennsylvania, Avhere, if at all, the parties-were married, a marriage is a civil contract, and may be made_£><s?" verba de prcesenti, that is, by words in the present tense, without attending ceremonies, religious or civil. Such is *495 also the law of many other States in- the absence of statutory rеgulation. It is the doctrine of the common law. But Avhere río such ceremonies are required, and no record is made to attest the marriage, some public recognition of it is necessary as evidence of its existence. The protection of the parties and their children and considerations of public policy require this public recognition; and it may be made in any way Avhichcan be seen and knоwn by men, such as living together as man and Avife, treating each other and speaking of each other in the presence of third parties as being in that relation, and declaring the relation in documents exеcuted by them whilst living together, such as deeds, wills, and other formal instruments. From such recognition the reputation of being married will obtain among friends, associates, and acquaintances, which is of itself evidence оf a persuasive character. Without it the existence of the marriage Avill always be a matter of uncertainty; and the charge of the court should direct the jury to its necessity in the absence of statutory regulations on the subject. Otherwise the jury Avould be without any guide in their deliberations. .
The laAv of Pennsylvania, as Ave are advised, requires, in some form, such recognition. See Nathan's Case, 2 Brewster, 149, 153; Commonwealth v. Stump, 53 Penn. St. 132.
Judgment reversed and cause remanded for a new trial.