I concur in the result in this case, for other reasons than those stated in the opinion of the majority. The difference between us is radical, and conditions the theory of the trial of the case; and as it may eventually result in a review by the supreme court, on certificate or on writ of certiorari, of the next trial, *362it seems to me proper to state my views, to the end that üie parties may, if they desire to do so, avoid the question which divides us. It is the true answer to this question concerning which we differ: In an action for libel, in which the defendant interposes pleas of justification and of mitigation of the damages for the publication, may evidence which is not competent upon either of the issues thus raised be introduced to prove the good or bad faith, the good or evil purpose, with which the defendant filed the plea of justification? The opinion of the majority is that this question should be answered in the affirmative, while it seems to me that it should receive a negative answer. My understanding of the law is that the bad faith or evil purpose of a defendant in filing a plea of justification which will warrant a jury in finding' malice and in awarding punitive damages is an inference from the plea, and from the competent evidence, or from the lack of competent evidence, in support of it, and that ilie existence or nonexistence of bad faith and evil purpose is not -an independent issue, upon which evidence not competent upon the issues of justification and mitigation of damages for the publication can be lawfully received. There is a strange dearth of authority upon this question, attributable probably to the facts that few attorneys have supposed that evidence incompetent upon the issues pleaded •could be introduced to try an issue which is not pleaded, and to the .almost universal concession of the authorities that the law upon this subject is properly stated in the text-books in these words: “Pleading a justification on the record is not of itself evidence of malice on the part of the defendant, but it may aggravate the damages if the •defendant either abandons the plea at the trial, or fails to prove it.” Odgers, Lib. & Sland. (2d Ed.) 136; Starkie, Sland. & Lib. (5th Ed.) 498; Townsh. Sland. & Lib. (4th Ed.) § 400; 13 Am. & Eng. Enc. Law, 401; Browning v. Powers (Mo. Sup.) 38 S. W. 943, 946; Distin v. Rose, 69 N. Y. 122, 127, 128; Cruikshank v. Gordon, 118 N. Y. 178, 185, 23 N. E. 457; Hawver v. Hawver, 78 Ill. 412; Upton v. Hume, 24 Or. 420, 430, 33 Pac. 810, 21 L. R. A. 493; Association v. Schenck, 98 Fed. 925, 929, 40 C. C. A. 163, 167. All the cases cited in the opinion of the majority rest upon a lack of competent evidence to support the plea of justification, and in only one of them was any evidence admitted which was not competent either upon that plea or the plea of mitigation of damages.for the publication; and in that single case (98 Fed. 929, 40 C. C. A. 167)., the evidence was made admissible by the introduction by the opposite party of immaterial evidence which it was competent to rebut. The old rule was that upon a plea of justification no evidence was admissible which was not relevant to- that issue, and that a failure to establish the plea was evidence that it was filed for an improper purpose, which the jury might consider in aggravation of damages. Under this rule no evidence could be introduced either in mitigation of damages for the publication of the libel, or in mitigation of damages for the .filing of the plea. The statute of Missouri carved out of this rule an exception. It permitted the defendant to plead facts in mitigation of damages for the publication •of the libel, and, after making this plea, to introduce evidence in 'mitigation of those damages. But it did not authorize either the plea *363or (Ik1 proof of facts in miiRation of (lie damages for filing'a plea of justification. If a statutory amendment was indispensable- to permit a plea and proof of .mitigation of damages for the publication of a libel, why is it not equally indispensable to the allowance of a plea and proof of mitigation of damages for the filing of a x>iea of justifica lion? The logical result of íhe rule and the statute is that all of (he rule except that part destroyed by the exception remains, and that the defendant cannot lawfully introduce evidence otherwise incompetent in mitigation of the damage's for filing, with a wrongful purpose and an evil intent, a plea of justification which he is unable to prove; and for the same reason the plaintiff cannot be permitted to introduce evidence otherwise incompetent to enhance damage's of ¡his nature. The- converse of this rule permits the (rial of an issue not pleaded, and is in its operation unjust, impracticable, and dangerous to both of the parties to an action for libel. It is perilous to the rights of the plaintiff, because it opens the door upon every plea of justification to the actual trial of that: issue upon hearsay testimony easily manufactured by the defendant. For if, whenever justification is pleaded, the' issue is presented whether or not this plea was filed in bad faith, with evil purpose, and if evidence competent on the latter issue and inadmissible on others may be introduced, everything which influenced the mind of the defendant in filing the plea, — every false and malicious saying about the charge in the libel, or similar charges about, the reputation or character of the plaintiff, about his conduct and business,— becomes admissible to show the defendant’s good faith, when coupled with his testimony that he heard and believed the statement, and the trial necessarily degenerates into a mere story factory. .The judge may caution and charge the jury that these stories — that this mass of hearsay — is not evidence of the truth of the libel; but; no human, being can prevent such testimony from having great and probably controlling influence upon their minds in determining that issue, and thus in reality the truth of the charge in a libel will be decided, not by the facts, but by the stories which the defendant has heard. Nor is this rule less daugerous to the defendant. He has the right under she law to interpose his defense of justification, and to search for all fads and evidence to support if. Ormsby v. Douglass, 37 N. Y. 477; Doe v. Roe. 32 Hun, 628, 632; Willard v. Publishing Co., 65 N. Y. Supp. 75; Distin v. Rose, 69 N. Y. 122; Bisbey v. Shaw, 12 N. Y. 67. And yet if his good faith in exercising these i-ights is in issue the moment he avails himself of them, and if evidence; not competent upon the issue's of justifie-ation and of mitigation of the damages for the1 publication is admissible to assail his purpose, intent, and motive In defending himself, then whatever (lie plaintiff, his emissaries, or strange'rs have told the defendant or his aftorue'js before he files his answer regarding the falsity of the; charge* in the libel, the high character, good re>pnfat;ion, and commendable; ae:ts of the plaintiff becomes competent ('vieloiwe in the case;, and the'trial of this unpleaded issue; upon this hearsay evidemce overshadows Hie true issues in the case; and the actual facts, and practically deprives the defendant of a fair trial of the real issues. For the reasons which have now been briefly stated,, this emphatic protest is entered against the adoption of such a prac*364tice, and it is insisted that the true rule is that, under pleas of justification and of mitigation of damages for the publication of a libel, no evidence is admissible which is not competent, relevant, and material to those issues, and that the good or bad faith and the right or wrong purpose of the defendant in filing the plea of justification must be determined from that evidence, or from the lack of it, and from these alone. Of course, if either party violates this rulé and introduces incompetent evidence, the other party ought to be permitted to rebut it with evidence of the same class. Salt Lake City v. Smith (C. C. A.) 104 Fed. 457, 470. And, for this reason, when the court below had erroneously permitted the introduction of the testimony found in the cross-examination of Becker relative to his search for evidence to sustain the defense, it should have held an even hand, and have permitted the defendant to introduce the evidence of the same character offered upon his redirect examination.
But it was, in my opinion, error to permit the introduction of the statement of the district attorney in the case of the State v. Gordon and Carlisle, the testimony of Becker on his cross-examination relative to his search for evidence to sustain the defense, and all other evidence that was not competent upon the issues of justification and of mitigation of damages for the publication; and for this reason the judgment below is properly reversed. The statement of the district attorney was not made in an action to which the defendant was a party. It was not an admission of the defendant against interest. It was not made in a proceeding in which the defendant had an opportunity to appear or to cross-examine the witness. It was merely that which the district attorney wrote in a proceeding between strangers to the defendant, and as against it the statement was mere hearsay, and proved nothing that was found in it. It was incompetent to establish any fact in issue under the pleadings, because it was hearsay; and, for the reasons already stated, it was inadmissible upon the issue of the bad faith of the defendant, which was not pleaded. The matters referred to in the opinion of the majority as justifying its introduction were not in evidence when it was offered, and it was not proper to introduce any evidence to rebut statements in pleadings or remarks of counsel which were not relevant to any issue raised by the pleadings; and, if it had been, the writing of the district attorney was incompetent to rebut them, because it was hearsay and res inter alios acta.
The cross-examination of Becker relative to his search for evidence for the defense, in addition to its irrelevancy' to any issue raised by the pleadings, was a flagrant violation of a basic rule of practice which is indispensable to the orderly conduct of a trial. The search made, facts discovered, and evidence gathered by Becker had not been mentioned or referred to in his direct examination. A witness is not subject to cross-examination upon any subject concerning which he has not been interrogated on his direct examination. If the plaintiff desired to examine this witness upon the matters referred to in this cross-examination, he could have made him his own witness, and then he might, in the discretion of the court, have been permitted to ask him leading questions; but he had no right to intro*365duce Ms testimony,upon these matters, when the defendant had asked him no questions concerning them. Of this rule this court has lately said, through Judge Caldwell, “Without the observance of the fundamental rule on this subject, the trial of a cause would speedily degenerate into inextricable confusion and disorder.” Mine & Smelter Co. v. Parke & Lacy Co., 107 Fed. 881; 1 Greenl. Ev. § 445; Hopkinson v. Leeds, 78 Pa. 396; Fulton v. Bank, 92 Pa. 112, 115. The judgment below is properly reversed, but, in my opinion, the next trial should be conducted in accordance with the rules of evidence to which attention has been called.