
    *Brown v. Speyers.
    January Term, 1871,
    Richmond.
    Joynes, J., absent, sick.
    1. New Trial — After-Discovered Evidence — Nature of the Evidence. — It is an established rule of the courts to grant new trials very rarely, upon the ground of after-discovered evidence; and never but under very special circumstances. The party asking for it must show he was ignorant of the existence of the evidence, and it must be such that a reasonable diligence on his part would not have secured it at the former trial; that the new evidence is not of like import with any part of that offered on the former trial. He must produce the affidavits of the witnesses, stating the facts they will testify to, or if that be impracticable, the affidavits of persons who have conversed with them, showing the facts they will state.
    2. Same — Same—Same.—A new trial will never be granted on the ground of after-discovered evidence, if it appears that the evidence might, with reasonable attention and diligence, have been procured before the first trial; nor when the affidavit states only that a person had told a party what he would say; nor when the evidence does not relate to new facts, but consists merely of cumulative facts or circumstances relative to the same matter controverted at the former trial.
    3. Wager Contracts — Mutuality of Risk. — That is not a contract of wager, by the terms of which all the profit or loss is to be on one of the parties.
    4. Contract for Sale of Gold — Public Policy. — Contracts for the sale and purchase of gold are not void as against public policy.
    This was an action of assumpsit in the Circuit court of the city of Richmond, brought in December, 1868, by Albert Speyers, a gold broker of.New York, against A. Vance Brown, to recover the amount of commissions due to, and losses sustained by, the plaintiff, upon purchases and sales of gold which he alleged he had made for Brown. The declaration contained only the *money counts. The only evidence introduced on the trial was the depositions of the plaintiff and the defendant, and the copies of accounts and letters filed with the depositions; and on the 16th of February, 1869, the jury found a verdict in favor of the plaintiff for $1,043 08, with legal interest from the 1st of April, 1867, till paid; upon which the court rendered a judgment.
    On the 10th of March, during the same term of the court, Brown moved the court for a new trial; but the court overruled the motion, and he excepted. On the 15th of March the exception was presented to the court. It embodied the evidence given on the trial, and also the affidavits of the defendant and of Hamilton G-. Rant. The affidavit of the defendant stated that he had discovered new and material evidence, the existence of which was unknown to him before the trial, and which, by no diligence, he could possibly have discovered before said trial; and which evidence would, in his opinion, if it had been introduced on the trial, have produced a different verdict, viz: that the transactions which formed the subjects of said suit were fraudulently conducted by said Speyers, and that the sales and purchases of gold, alleged to have been made by Speyers for the defendant, were not real and. bona fide sales and purchases; but, on the contrary, were collusive and fictitious; and that the same identical lots of gold, alleged to have been sold by him, were, in point of fact, sold on account of various persons at the same time; and that the same identical lots of gold were in like manner purchased on account of various persons at the same time other than the defendant ; so that the defendant was charged with commissions and losses on transactions which were not really and bona lide made on account of the defendant, or for his benefit; and that the knowledge of these facts only became known to the defendant on Wednesday, the 17th instant, two *days after said trial was had; and that the names and residences of the witnesses by whom these facts can be proved were not ascertained by him before the said trial, and could not have been ascertained by him before, in consequence of the fact that the said transactions were had in a distant city, viz: New York, where also the said witnesses reside; and that the knowledge of said facts and the names of said witnesses were learned by him by means of an interview with one of the said persons, which was brought about by an accidental circumstance that occurred after the trial; that the circumstances under which he became apprised of the above-mentioned facts were wholly accidental; and that no amount of effort or diligence, or the use of any ordinary means of enquiry within his power, would have enabled him to have ascertained the existence of the same at any time prior to the trial of the cause.
    Rant, in his affidavit, says: I have read the above affidavit of A. Vance Brown, and I have reason to believe that if a new trial is granted to Mr. Brown he will be able to establish the facts mentioned by him as to the purchases and sales of gold referred to by him in said affidavit.
    The defendant, in his deposition, which was read on the trial and made a part of the bill of exceptions, after stating that a letter written by him and made a part of the deposition of the plaintiff, was written from Chicago before he had received an account from the plaintiff, says that on his way back to Richmond he telegraphed twice to the plaintiff, to know why he had exceeded his instructions, and instructed him at the same time to sell what he had bought; to which telegrams he received evasive replies from the plaintiff. That soon after his return to Richmond he compared the above-mentioned telegrams with similar telegrams that had been received by another party, Mr. H. G. Rant, for whom the plaintiff was at the same time acting as broker, *and that the comparison of the two at once impressed the defendant with the idea that a fraud had been practiced by the plaintiff, in this, that the sales and purchases reported in the said account current were not real and bona fide transactions; and that the plaintiff, who was an operator in gold on his own account, had made the transactions for himself, and had charged the losses to the defendant, and had also charged commissions for said transactions to defendant, as if said sales and purchases had been really and in good faith made by the plaintiff as broker for the defendant.
    The court, in overruling the motion for a new trial, gave, as the grounds of his judgment, that the only witnesses introduced on the trial were the plaintiff and defendant, and their testimony was in direct conflict; and the court could not, therefore, certify the facts; and because the newly-discovered evidence is cumulative, and of the same character with that offered by the defendant himself. And the court certifies that, as to the affidavit of H. G. Rant, it appeared on the trial that he has given to the defendant information in relation to the matters testified to by the defendant on the trial. And the court certified, in relation to the sales of gold in the gold room in New York; that the party offering the gold never had the gold which he professed to sell in his possession, but at the time of delivery is expected to account for its then value.
    Upon the application of Brown a writ of supersedeas was awarded to the judgment.
    E. Y. Cannon, for the appellant.
    The first point relied upon by the appellant is, that the evidence certified upon the motion for a new trial shows that the implied contract upon which the suit was brought in the court below was grounded on no actual consideration, but was a mere wager, and, as *such, void under the provisions of law on that subject. See Code of 1860, chap. 142, sec. 2.
    The second point relied upon by the appellant is, that it appears by the said evidence, as certified upon the said motion for a new trial, and in the certificate of the judge of the Circuit court, that at the time when the alleged sales and purchases of gold took place, which formed the pretended consideration of said contract, in point of fact no such sales or purchases were made, and the subject matter of said alleged sales and purchases had at that time no existence, actual or potential, and, therefore, according to a well-established principle of the law of sales, the alleged contract in relation thereto was in law void. And on this point X refer to the cases of Bryan v. Gewis, Ryan & Moody, R. 386, 21 Eng. C. G. 467; Robinson v. Macdonnell, S Maulé & Sel. R. 228; Gunn v. Thornton, 1 Common Bench R. 379, SO Eng. C. G. ; Wood & Roster’s Case, 1 Geonard R. 42.
    The third point on which the appellant relies is, that the motion for a new trial, on the ground of after-discovered evidence, was improperly denied; and on this point I refer to the following cases: Simmons v. Ray, 1 New York, E. D. Smith R. 107; White v. State, 17 Ark. R. 404; Bronson v. Hickman, 10 Indi. R. 3; Nuckols’ Adm’r v. Jones, 8 Gratt. 267; Hansburger v. Kinney, 13 Gratt. 511.
    In reply to the brief of argument upon the part of the appellee, I submit:
    Rirst. That the point made by him, that the bill of exceptions in this case states the evidence of the witnesses, instead of the facts proved, in support of which proposition he cites the case of Bennett v. Hardaway, 6 Munf. 125, and other cases of the like character, has no application whatever to the present case. The motion for a new trial in this case was not based upon the ground that the verdict was contrary to the evidence, *but upon the ground of after-discovered evidence, and upon the ground, further, that the verdict was contrary to law; and, for the purposes of this motion, it was not only competent, but proper, that all the evidence should be stated in the bill of exceptions, in order that the appellate court may determine the relevancy of the affidavits offered in support of the motion, and, also, whether upon the whole case made by the evidence, the verdict was contrary to law or not. And the case of Nuckols’- Adm’r v. Jones, 8 Gratt. 267, which is cited by the counsel for the appellee in support of his position, X rely upon, also, to show that the frame of the bill of exceptions in this case is right, and that an omission to state the whole evidence would have been error. And it will be seen that the judge who signed the certificate in this case expressly declined to certify the facts proved, because of the conflict in the testimony.
    In regard to the second point made by the counsel for the appellee, that the newly-discovered testimony was cumulative, and that the affidavits offered in support of the motion were insufficient in not coming from the newly-discovered witnesses themselves, in support of which propositions the counsel cites 2nd Tucker’s Com. pages 306, ’7 and ’8, the case of Callaghan v. Kippers, 7 Heigh 608, and various other cases, I have to sajr that not one of said cases or authorities referred to, supports the propositions contended for by the counsel for the appel-lee.
    In the first place, the testimony was not cumulative in any sense, as is shown by the certificate of the judge himself who presided at the trial. The certificate shows that the only witnesses examined on the trial were the plaintiff and defendant, and that their testimony was in conflict. The newly-discovered testimony, as shown by the affidavits, went to fortify and confirm the evidence given by the defendant; and where the scales of evidence are equally balanced by the opposing *oaths of the parties to the cause, new testimony of disinterested persons, confirmatory of the statements made by either of said parties, is not cumulative, and it would be absurd to call it so.
    The case of Nuckols’ Adm’r v. Jones goes further to support the propositions of the appellee on this point, than any other he has cited; but by reference to that case it will be seen that the affidavit upon which the motion for a new trial was grounded, merely stated that the party moving for the new trial had been informed that certain witnesses would give important testimony, without stating the nature of the testimony, so as to enable the court to see whether such new testimony would have the probable effect of producing an opposite verdict upon the new trial. And further, it appears that in that case the motion was rejected because the case had been depending for a length of time, and the newly-discovered witnesses lived in the county, and within a few miles of the party making the application for the new trial; whereas in the case at bar the cause was tried at the first term after it had matured, and the newly-discovered witnesses resided several hundred miles from the place of trial. In regard to the third point made by the counsel for the ap-pellee, that a constructive delivery of chattels is sufficient to pass the right of property, and that an actual delivery in fact is not necessary, and the cases of Pleasants v. Pendleton, 6 Rand. 473 ; Chapman v. Campbell, 13 Gratt. IOS; and Brock - enbrough’s Rx’ors v. Spindle’s Adm’rs, 17 Gratt. 21, cited in support of said proposition, I submit that the principle laid down in said cases has nothing to do with the case at bar. As I have already argued, there was no delivery in this case, either actual or constructive. The pretended subject matter of the sale had no existence, either actual or potential. The transaction in question was a mere gambling transaction ; a mere wager that gold would be worth a given sum on *the market, on a given day in the future. The party offering to sell said gold did not have it in his possession, nor ever expected to have it in his possession. He neither delivered it nor expected to deliver it, nor was capable of delivering it; and when the counsel for the appellee says, in his brief, that these statements are “unsupported in evidence and without foundation in fact,” he must have overlooked the certificate made by the judge who tried this cause; in the bill of exceptions the court certifies that, “in relation to the sales of gold in the gold room in New York, the party offering to sell gold never had the gold which he professed to sell in his possession, but at the time of delivery is expected to account for its then value.”
    Rose, for the appellee.
    1. The bill of exceptions in this case states the evidence of the witnesses instead of the facts proved. The Appellate court, therefore, according to its -well-settled practice, cannot revise the judgment of the court below, unless, by rejecting all the evidence of the exceptor and giving to that of the adverse party full force and credit, the decision still appears to be wrong. The application of such a test here must put an end to the case, and, in the language of Judge Roane in Bennett v. Hardaway, “repel it from the consideration of the court.” Bennett v. Hardaway, 6 Munf. 125; Carrington v. Bennett, 1 Leigh 374; Ewing v. Swing, 2 Leigh 337; Callaghan v. Kippers, 7 Leigh 608; Pasley v. English & als., 5 Gratt. 141; Nuckols’ adm’r v. Jones, 8 Gratt. 267; Parish & Co. v. Reigle, 11 Gratt. 66V; Carrington v. Goddin, 13 Gratt. 587; Bull’s Case, 14 Gratt. 613.
    2. The newly-discovered testimony was cumulative, or of the same character as that before offered by the defendant himself on the trial, and did not relate to any new fact, and was therefore inadmissible. The affidavits also were insufficient in not coming from *the newly-discovered witnesses themselves. 2 Tuck. Comm. 306-7-8; Callaghan v. Kippers, 7 Leigh 608; Nuckols’ adm’r v. Jones, 8 Gratt. 267; Hansbarger’s adm’r v. Kinney, 13 Gratt. 511; 1 Gr. & Wat. on New Trials 462 to 472, and 486 to 492 ; 3 ib. 1057 to 1063, 1065 to 1072, and cases cited.
    3. An established usage constitutes the common understanding of parties, and ought to be resorted to as the interpreter of the contract.
    In contracts for the sale of chattels, a constructive delivery is sufficient to pass the right of property; an actual delivery in fact or law is not necessary. The contract of sale being complete, the purchaser is bound though there was not and could not be a delivery, and though the vendor may not have the chattel, but may have to go into the market and buy the same. Pleas-ants v. Pendleton, 6 Rand. 473; Chapman v. Campbell, 13 Gratt. 105 ; Brockenbrough’s ex’ors v. Spindle’s adm’rs, 17 Gratt. 21; 1 Par. on Con. (5th edi.) 513, note m. and cit. ; Hibblewhite v. McMorine, 5 Mees. & Welsh. R. 462.
    4. The statements of the appellant in his brief, that ! ‘the implied contract upon which the suit was brought in the court below was grounded on no actual consideration, but was a mere wager,” and that no sales or purchases of gold were, in point of fact, made, and ‘‘the subject matter of said alleged sales and purchases had no existence, actual or potential,” are statements unsupported by evidence, and without foundation in fact.
    
      
      New Trial — After-Discovered Evidence. — The rule laid down in the principal case, that the party asking a new trial on the grounds of after-discovered evidence must produce the affidavits of the witness, stating what they will testify, etc., has been followed in several W est Virginia cases, citing the principal case as authority. See Strader v. Goff, 6 W. Va. 271, 258; Hale v. Pack, 10 W. Va. 155; Varner v. Core, 20 W. Va. 475.
      Same — Same—What Four Things Must Concur. — As to the four things necessary to authorize a new trial on the ground of after-discovered evidence, several cases cite the principal case as authority. See Whitehurst v. Com., 79 Va. 561; Gillilan v. Ludington, 6 W. Va. 145; Smith v. McLain, 11 W. Va. 668; Zickefoose v. Kuykendall, 12 W. Va. 30; Carder v. Bank of W. Va., 34 W. Va. 41, 11 S. E. Rep. 717. See also, on this point, Thompson’s Case, 8 Gratt. 641; Wynne v. Newman, 75 Va. 817; Read’s Case, 22 Gratt. 924, and foot-note, where numerous cases, in accord with the principal case on this point, are collected.
      Same — Same —Cumulative Evidence. — In State v. Hobbs, 37 W. Va. 824, 17 S. E. Rep. 385, the principal case is cited upon the question of cumulative , evidence. See also, on this point, foot-note to St. John v. Alderson, 32 Gratt. 140.
    
    
      
      Wager Contract — Mutuality of Risk. — In Embrey v. Jemison, 9 Sup. Ct. Rep. 779, the court said; “The plaintiff relies upon Brown v. Speyers, 20 Gratt. 296, as expressing a differentview of this question. But we do not so understand that case. The supreme court of appeals of Virginia did not there indicate its opinion as to the validity of a contract for the purchase of “futures,” the settlement in respect to which was to be upon the basis of paying simply the difference, according to the fluctuations in. the market, between the contract price and the market price.”
      See monographic note on “Gaming” appended to Neal v. Com., 22 Gratt. 917.
    
   STAPLES, J.,

delivered the opinion of the court.

The defendant in error, a gold broker in the city of New York, was employed, in the year 1867, by plaintiff in error, residing in the city of Richmond, to buy and sell gold on commission. The speculation proved unfortunate, resulting in a loss to the latter of about *four thousand dollars. At the close of the transactions between the parties, the defendant in error claimed a considerable balance to be due him, for the recovery of which a suit was instituted in the Circuit court of the city of Richmond, and at the February term, 1869, a verdict and judgment were rendered in his favor.

The plaintiff in error then moved the court to set aside the verdict and grant him a new trial, upon the ground of after-discovered evidence; and he offered his own affidavit and that of Hamilton G. Pant, in support of this motion. The facts set forth in defendant’s affidavit were, substantial^', that the purchases and sales of gold with which plaintiff in error was charged, were fictitious and fraudulent; that the identical lots of gold alleged to have been bought and sold for plaintiff in error, were purchased and sold on account of various other persons, at the very same time; so that plaintiff in error was charged with commissions and losses on transactions which were not really for his benefit; and the knowledge of these facts only became known to him two days after the trial; that the names and residences of the witnesses by whom the facts could be proved, could not be ascertained by him before the trial, because the transactions took place in a distant city, where the witnesses resided, and that the knowledge of these facts, and the names of the witnesses, were learned by him by means of an accidental interview with one of said persons after said trial.

The witnesses alluded to in this statement were not produced, nor were their affidavits read, nor even their names given. It is stated, however, that the names of the witnesses and the facts relied on, were learned in an interview between plaintiff in error and one of said persons. Who that person is and why his affidavit was not taken and filed, we are not informed. The affidavit of Hamilton G. Pant is in the record; and he states *that he had read the affidavit of plaintiff in error, and that he had reason to believe that if a new trial was granted plaintiff in error, he would be able to establish the facts relied upon in regard to the purchases and sales of gold. What these reasons are does not appear. Whether founded on a knowledge of the facts or a mere inference from facts, we are left to conjecture. If this affiant had conversed with the witnesses in New York, it is a little remarkable he was not requested so to state. If he was one of the persons who had personal knowledge of the fraudulent conduct of the defendant in error, it is still more remarkable he did not state the facts. The cautious language employed by him would indicate that he was stating opinions rather than facts. Whatever he may have intended, no value or importance can be attached to an affidavit couched in such language.

On the trial of the cause, the plaintiff in error was himself examined as a witness. It appears from his testimony that as early as March, 1867, his suspicions of the defendant in error were awakened by certain evasive telegrams received from the latter; that these suspicions were strengthened by comparing these telegrams -with others received from the same source by the witness Pant, from which it appeared that defendant in error was then professing to buy and sell at the very same time, the identical amounts of gold for said Pant, he was pretending to buy and sell for plaintiff in error. It is evident, from this statement, and from the affidavit of plaintiff in error, as also the certificate of the judge who presided at the trial, that the said Pant was one of the persons by whom plaintiff expected to establish the facts contained in his affidavit,, and urged as a ground for new trial. It appears that the trial did not take place until February, 1869; two years after the interview with Fant and the comparison between the telegrams; and yet Fant was not *examined as a witness, nor is any reason given for the failure to do so; and the plaintiff in error gravely asks for a new trial to afford him an opportunity of examining a witness whose testimony was known to him two years before the former trial.

During all this time it does not appear that the plaintiff in error exercised the slightest diligence, or made any preparation for his defence, or effort to find or procure the attendance of witnesses, notwithstanding his attention had been directed to the very facts now made the basis of an application for a new trial. But his negligence, after the trial, ■ was equally glaring and palpable; and subjects him to the suspicion of attemptng to obtain a new trial upon improper grounds.

The verdict was rendered on the 16th February, 1869. The affidavits of plaintiff in error and H. G. Fant were made two days thereafter. The motion for a new trial was, however, not submitted until the 10th of March; nor was the bill of exceptions signed until the 15th of the month. During this period the plaintiff had ample opportunity to go to New York and take the affidavits of the witnesses whose names and residences he had ascertained on the 18th February; and thus shew to the court that he had discovered new and important evidence unknown before, which, upon a new trial, would establish, beyond controversy, the fraudulent conduct of his agent. Instead of pursuing this plain and obvious course, he appears to have been content to trust his case to the court upon the unsatisfactory affidavits previously taken; or perhaps he was conscious of his inability to establish the facts upon which he founded his claim to the interposition of the court in his behalf.

To grant a new trial, under the circumstances here disclosed, is to violate well-settled principles of law; to offer premiums to negligent or fraudulent suitors to omit the exercise of proper diligence in preparing *for the trial of cases. It is an established rule of the courts to grant new trials very rarely upon the ground of after-discovered evidence, and never but under very special circumstances. The party must show he was ignorant of the existence ,of the evidence, and it must be such as reasonable diligence on his part could not have secured at the former trial; that the new evidence is not of like import with any part of that offered on the former trial. He must produce the affidavits of the witnesses, stating the facts they will testify, or, if that be impracticable, the affidavits of persons who have conversed with them, showing the facts they will state. On the other hand, a new trial will never be granted if it appear that the evidence might, with reasonable attention and diligence, have been procured before the first trial: nor where the affidavit states only that a person had told the party what he would say: nor where the evidence does not relate to new facts, but consists merely of cumulative facts or circumstances relative to the same matter controverted at the former trial. Smith v. Brush, 8 Johns. R. 84; Shumway v. Fowler, 4 Johns. R. 425; Nuckols v. Jones’ adm’or, 8 Gratt. 278; Callaghan v. Kippers, 7 Leigh 608; 13 Gratt. 511.

It is objected, however, that the contract, which is the foundation of this action, is a mere wager, and void, as such, under the provisions of the Virginia statutes. I cannot perceive the force of this objection» By the very terms of the arrangement, the defendant in error, in buying and selling the gold, could sustain no loss, nor realize any profit from the transaction beyond his commissions, to which he was entitled in any event. Whatever might happen, no damage or benefit could accrue to him from the adventure. If any profit resulted from the speculation, it belonged to the plaintiff in error. If any loss accrued, he was to bear it. And I have yet to see a case in which it has been held that *a contract is a wager, by the terms of which the loss and profit were all on one side.

Another point relied upon in the argument is, that no sales and purchases of gold were in fact made; and the' subject matter of such pretended purchases and sales had, at the time, no existence, actual or potential; and therefore, according to a well established principle of the law of sales, the contract in relation thereto was void in law. In support of this position several cases were cited, in which it has been held, that if goods are sold, to be delivered at a future day, and the vendor neither has the goods at the time, nor has entered into anj- prior contract to buy them, nor has any reasonable expectation of receiving them by consignment, but means to go into the market and buy the goods he has contracted to deliver, he cannot maintain an action on such contract. Whether this principle be sound or not, it is unnecessary now - to decide. It certainly has -been repudiated by great judges, and is not regarded as law, according to the current of modern authorities. See 2 Parsons on Contracts, 543; Hibblewhite v. McMorine, 5 Fxch. R. 462. This principle, however, can only apply to actions by the vendor against the vendee to recover damages for non-performance of the contract. It can have no application to a case in which an agency is established, and the agent is authorized to go into the market, purchase the goods, and sell them for the benefit of his principal. In such case, if the agent conforms to his instructions, and a loss is sustained from the transaction, it would seem to be too clear for argument, that the principal is bound to indemnify the agent for any loss he may sustain. As the agent is not permitted to reap any of the profits of his agency, he is entitled to be compensated for all expenditures and damages arising in the course of his employment.

In regard to the assertion, that no such purchases and *sales of gold were in fact made, the defendant in error states that all the transactions mentioned in his account of gold bought and sold for the defendant were actual, bona fide transactions, with other parties; and there is no evidence in the record contradicting this statement.

The last and only remaining point to be noticed, made by the counsel for the plaintiff in error, is that contracts for the sale of gold are illegal, because they are supposed to contravene considerations of public policy.

The Congress of the United States has exclusive control of all questions appertaining to the currencj. It has not deemed it advisable to adopt any legislation prohibiting the purchase and sale of gold. On the contrary, the act of June, 1864, as amended by that of 186S, imposes a tax upon any sales or contracts for the sale of gold and other bullion and coin; and the act of March, 1863, provides that all contracts for the purchase or sale of gold or silver coin or bullion, if to be performed after a period exceeding three days, shall be in writing or printed, and signed by the parties or their agents. It would be a singular exercise of judicial power for the court to declare illegal, sales from which the government not only derives a revenue, but has actually defined the terms upon which those sales shall be made under certain circumstances.

Independent of such considerations, the courts are very averse to holding contracts illegal upon grounds of public policy, unless the question is free from all doubt. In Hilton v. Eckersly, 6 Ellis. & Black. R. 47, the judges differed in opinion as to what public policy really was in the case then before them. Eord Campbell said he entered upon such considerations with much reluctance and great apprehension.

Bert, Ch. J., said he was not much disposed to yield to arguments of public policy: that the judges had *gone much further than they were warranted in going, on such questions: that they had taken on themselves, sometimes, to decide doubtful questions of policy; and they were always in danger of so doing, because courts of law look onlv at the particular case, and have not the means of bringing before them all those considerations which enter into the judgment of those who decide on questions of public policy. Judge Story has said that the courts have never really defined it. That it varies with the habits and fashions of the day, with the growth of commerce and the usages of trade. In the License Tax Cases, 5 Wall. U. S. R. 462, Chief Justice Chase said: “This court can know nothing of public policy, except from the constitution and laws, and the course of administration and decision. ”

Whether purchases and sales of gold unduly affect the currency, and, if so, to what extent; whether the tendency of such transactions is to depress or stimulate values, are questions of political economy that address themselves chiefly to the legislative department. Their solution depends upon the laws and usuages of trade and commerce, the course of legislation, the confidence of the people in the circulating medium, and the good faith and stability of the government, the state and condition of the country. There is nothing in this record, this court has no data, no facts before it, which enable it to declare that the business of buying and selling gold injuriously affects the currency, the trade or the morals of the country. We may indulge in speculative opinions upon the subject; but it would be going very far to pronounce such transactions illegal, upon some vague and undefined notion that their tendency is to violate public policy. The cases cited, and others that might be referred to, justify no such conclusion.

The judgment of the court below is therefore affirmed.

Judgment affirmed..  