and

District in the case of Burdette v. Burdette, 2 Mackey, 469, the uniform rule of practice in this District. And this rule, we think, is not affected by § 1068 of the Code, which provides that "in both civil and criminal proceedings husband and wife shall be competent, but not compellable, to testify for or against each other." This section must be taken as qualified by § 964 of the Code, which provides a special rule of evidence for divorce cases. This 964 provides that "no decree for a divorce, or decree annulling a marriage, shall be rendered on default, without proof; nor shall any admission contained in the answer of the defendant be taken as proof of the facts charged as the ground of the application, but the same shall in all cases be proved by other evidence." Now, it is very clear from this that no decree for a divorce or the annulment of a marriage can be given upon the mere unsupported petition of either husband or wife, even though the petition should be sworn to; and it is not apparent to us that the conditions are altered by the substitution of a deposition for the petition. The plain purpose of the law is to prohibit divorce or annulment of marriage upon the mere statement of one of the parties without corroborative evidence. This may be often difficult, and sometimes impossible, to be procured; and we may easily conceive of cases where the requirement would work hardship. But the reason of the requirement and the public policy to be subserved are apparent, and that public policy must prevail against individual cases of hardship.

In order to annul the marriage in the present case the one important thing to be shown is that the appellant is not the father of the child born during that marriage. This may be somewhat difficult of proof. The sole proof that we have of it is the bare statement of the appellant to that effect; but we think that under the statute this is not sufficient. There must be "other evidence" of it, as required by the statute, in order that the petitioner may succeed.

The same course of reasoning will apply to the other question raised, the question whether, even if the appellant be not the father of the child that was born, he did not condone the fraud

Opinion of the Court.

[24 App. upon him by continued cohabitation after its discovery by him. It is clear that he had his suspicions aroused upwards of two months before he put away the appellee. During all that time he cohabited with her. It is true that he denied that he cohabited with her in the sense of having sexual intercourse with her. But he certainly cohabited with her in the sense that, if the question were one of the commission of adultery, as remarked in the opinion of the learned justice who heard the cause in the court below, the commission of the act would be inferred. Shall we infer the commission of an unlawful act, when under the same precise circumstances we should not infer the commission of a lawful act,-for, under the circumstances, it was lawful for these parties to have sexual intercourse with each other? The sole testimony which we have to the effect that there was no such intercourse is the revised evidence of the appellant himself to that effect, after he had testified in substance to the contrary. We do not think that under the law his sole uncorroborated testimony can be received as sufficient to establish a fact so vital to his case, notwithstanding the difficulty, perhaps even the impossibility, of procuring other proof.

While we have no reason to doubt the truthfulness of the appellant's statements in his testimony, yet, as the other evidence required by the statute is wanting in his case, we cannot see that there was any error is the refusal of the relief which he prayed. But, as there may be hardship in his case which further developments may establish, we think that his petition might well be dismissed without prejudice to his right to renew it hereafter, if testimony should be forthcoming sufficient for the purpose.

The decree appealed from will be affirmed, with costs, but with the modification that it shall be without prejudice to the appellant to renew it hereafter as he may be advised. Affirmed.

A motion by the appellant to modify the opinion and decree overruled July 8, 1904.

D. C.]

Syllabus.

DE ARNAUD v. AINSWORTH.

MILITARY LAW; MEDALS OF HONOR; CIVIL LIBEL; PRIVILEGED COMMUNICATIONS; PUBLICATION; SECRETARY OF WAR.

1. It is only those who have distinguished themselves in action whose services are intended to be signalized by medals of honor under the act of Congress of March 3, 1863 (12 Stat. at L. 751, chap. 79), providing for the distribution by the President of medals of honor. A person rendering services as a spy, or as a military expert, however important and valuable such services may be, is not within the meaning of the statute.

2. Public policy affords absolute protection and immunity for what may be said or written by an officer in his official report or communication to a superior, when such report or communication is made in the course and discharge of official duty, and the question of motive, or whether there was a want of good faith in the making of such report, is immaterial; so that, a report by the chief of the record and pension office of the War department to the Secretary of war, made under departmental regulations, and as the result of an application for a medal of honor for distinguished services, wherein the applicant is charged with fraud, is absolutely privileged.

3. The Secretary of war is the regularly constituted organ of the President for the administration of the military establishment of the United States, and rules and orders promulgated through him must be received as those of the executive, and as such be binding upon all within the sphere of his legal and constitutional authority; and the work of his subordinates is, in contemplation of law, the work of his department, and is entitled to the same privileged protection that would attach to it if done by the secretary in person.

4. A report of a bureau officer of an executive department of the government, when incorporated in a printed Senate document as part of a committee report, becomes a public document which every person is entitled to receive, inspect, and circulate; and, if such bureau officer gives or loans to another person such a Senate document, he does not incur liability as for a publication of a libel.

No. 1360. Submitted March 18, 1904. Decided October 11, 1904.

HEARING on an appeal by the plaintiff from a judgment of

the Supreme Court of the District of Columbia upon the verdict of the jury directed by the court in an action for an alleged libel. Affirmed.

The COURT in the opinion stated the case as follows:

This is an action for an alleged libel, brought by Charles A. De Arnaud against Fred. C. Ainsworth. The judgment below was for the defendant, and the plaintiff has appealed.

The plaintiff in his declaration, containing three counts, in a long prefatory statement by way of inducement, among other things, alleges that on or about the 5th day of September, 1861, and before the grievances complained of, he was in the military service of the United States government, holding an appointment as a captain in the army of the United States, and serving on the staff of the late John C. Fremont, a major general in said army, then in command of the western department; that during the summer and fall of the year 1861, he performed, at the risk of his life, extraordinary services under the command and by the order of said general commanding said western department, by invading the lines of the Confederate forces in the States of Tennessee and Kentucky, said forces then being engaged in hostile operations against the United States, for which services it was agreed by General Fremont, in behalf of the government, that the plaintiff should be paid a munificent remuneration. That he made report of his services to headquarters of the western army, and that he received the highest commendation therefor from General Fremont and other commanding officers for the value of the services so rendered. The plaintiff then alleges that prior to April 24, 1895, he had made application to the war department of the United States for a medal of honor, on account of such services, which application was, at the date last mentioned, pending before the Secretary of war, and the plaintiff had pending at the time in the court of claims a suit against the United States for the recovery of a claim for the value of said services; and at the same time the plaintiff was seeking relief of Congress of the United States, by means of certain bills.

which he had procured to be introduced therein, and that he had an application for a pension then pending before the Secretary of the interior on appeal from the Commissioner of Pensions; and that, prior to that time, the plaintiff had been tried in the supreme court of the District of Columbia on an indictment charging him with making a false, fictitious, and fraudulent claim for pension, and of which charge he had been acquitted by a jury. Yet the defendant, well knowing the premises, but contriving and maliciously intending to injure the plaintiff in his good name and fame, and to bring him into public scandal, infamy, and disgrace, etc., and to vex, harass, oppress, and impoverish the plaintiff, and to wholly ruin him in his efforts to obtain the relief aforesaid, did, on the 24th day of April, 1895, falsely and maliciously compose and publish, and procured to be published, of and concerning the plaintiff, and of and concerning his military services and of the premises aforesaid, a false, scandalous, malicious, and defamatory libel, containing, among other things, the following: "That De Arnaud (meaning the plaintiff) considered himself and was considered by others, in 1861, to be simply a civilian who was employed in the secret service of the government, and who was afterwards making strenuous efforts to obtain compensation for the service so rendered, and that the claim which he first brought forward nearly a quarter of a century after the service ended, to the effect that he was appointed or commissioned an officer in the military service of the United States, has no foundation other than an insane imagination or a desire to perpetrate an impudent and bare-faced fraud." The declaration then sets out at much length several other parts of the report made by the defendant to the Secretary of war, and all of which are more or less severe in their strictures and comments upon the claims set up by the plaintiff, and upon his conduct and character as deduced from the facts stated in the report. The report was adverse to the claims of the plaintiff, and tended to show that they were entirely without any just foundation in morals or fact.

It is then alleged in the first count of the declaration, and also