stated. On the trial, the plaintiff having put in his evidence and rested, the defendant moved for a nonsuit, on the ground, among others, -1. That the alleged contract between McCeney and Sharp and Mrs. Harrigan is against good morals and public policy; and 2. That the alleged contract between Sharp and McCeney and William L. Bolte is against good morals and public policy. The motion was denied, and the defendant excepted. A verdict having been rendered for plaintiff, defendant moved for a new trial on a statement. In it he assigns as an error of law occurring at the trial, and excepted to by him, the denial of his motion for a nonsuit. On the hearing of the motion for a new trial, the court granted it "on the sole ground [as appears from the transcript] that the contract sued upon is contrary to public policy." As above stated, the motion for a nonsuit has reference only to the contract alleged, and the error of law set out in the statement is of the same import. The contract is alleged in the complaint alone. The motion for a nonsuit must then be determined on the allegations of that pleading. The court must have granted the new trial for the reason that the contract set forth in the complaint was contrary to public policy, for from the complaint only can we ascertain the contract sued on. And here we may remark that, according to the well-settled practice, the court below could not, in passing on the motion for a new trial, go beyond the grounds on which the new trial was asked; and in holding the action of the court to have reference only to the contract set forth in the complaint, we confine the course pursued by the court to the contract alleged therein, and to the grounds on which the defendant asked for a nonsuit. From the foregoing it is clear that, in passing on the question as to the character of the contract, the court is limited to what is stated by plaintiff in setting forth his cause of action, and that the evidence introduced on the trial cannot be considered.

But it is argued by counsel for appellant (plaintiff below) that on an appeal, as this is, from an order granting a new trial, the sufficiency of the complaint cannot be considered. To support this contention counsel make reference to several cases decided by this court, viz.: Spanagel v. Dellinger, 38 Cal. 283; People v. Turner, 39 Cal. 372; Mason v. Austin, 46 Cal. 385; Jacks v. Buell, 47 Cal. 162; Onderdonk v. San Francisco, 75 Cal. 534; Wheeler v. Kassabaum, 76 Cal. 90.

In the cases cited the question presented is entirely unlike

the one presented here. In this case the defendant moved for a nonsuit on grounds that challenged the sufficiency of the complaint, in that it set forth a contract on which an action could not be maintained. The nonsuit was denied, and an exception was regularly reserved. The defendant then found. himself in a position where he had a right to have the ruling of the court on his motion reviewed on a motion for a new trial. The ruling of the court on defendant's motion for a nonsuit, and his exception thereto, could be set forth in a statement or bill of exceptions as an error of law occurring at the trial, and there excepted to by him that it might be reviewed as above set forth. This right was assured to him by the provisions of the statute: Code Civ. Proc., sec. 657, subd. 7, secs. 658, 659. On the hearing of the motion for a new trial, the court a quo had an opportunity of reversing its former action. If it approved its previous ruling, the motion for a new trial would be denied. If its previous ruling was, in its judgment, erroneous, it was empowered to recall it and grant a new trial. On such hearing it was in the line of the regular procedure to confirm its former action or disapprove and recall it. Such course the law sanctions as applicable to all errors of law. An error committed in passing on a motion for a nonsuit constituted no exception to the rule.

Whether the court denied or granted a new trial, its action was subject to be revised on appeal. The plaintiff had a right to appeal from the order granting a new trial, and his appeal would bring before the court the action of the court below as to every question germane to the inquiry whether the lower court's action was in accordance with law or not. If the court below had, on the trial, committed an error for which it was proper, on its being regularly brought before it, to grant a new trial, this court would approve and affirm the action of such court in granting such relief. If, on the contrary, no such error had been committed, if the court below had on the trial before it ruled correctly, this court would, in accordance with such view, hold the order granting a new trial erroneous, and reverse it. This is the usual course of practice in the courts of this state, and we see nothing in it foreign to the procedure prescribed by law. It has been a practice, not unusual in our courts, to ask a trial court to instruct the jury, when the complaint did not state facts sufficient to constitute a cause of action, to find a verdict for defendant. Whether given or refused, such ruling could be reviewed on motion for a new trial;

and on the hearing of this latter motion, whether favorable or adverse to the motion, an appeal could be prosecuted from the order granting or refusing the new trial, and the action of the trial court passed on in this court, and either approved or set aside. We see nothing irregular here in having the question made on the motion for a nonsuit considered and passed on in this court, though it does go to the sufficiency or insufficiency of the complaint. The question comes before us in the regular course of procedure, and the legal exigencies of the case demand that it be considered and determined. If this court failed to pass on the point, it would in effect hold that there was error of law occurring at the trial, and there excepted to, which could not be reviewed on a motion for a new trial, and that, too, when the statute regulating the procedure in our courts had provided that all such errors should be so reviewed. There is nothing in the cases cited by counsel for appellant in conflict with what is stated above. In our judgment, the question is regularly presented here for decision, and the respondent is entitled to have it determined.

Is the contract set forth in the complaint contrary to public policy or good morals? Such is the question presented to us for determination. That contract is in substance this: A third person, not an attorney and counselor at law, enters into an agreement with an attorney and counselor at law that he will procure his employment by a litigant, and that in consideration of such procurement he is to have from the attorney and counselor so employed one third part of whatever remuneration the attorney receives for his services from the litigant. Is such a contract void, as contended, is the point presented. for consideration and decision. Courts are justified in declaring a contract void as against public policy, when it is expressly or impliedly forbidden by the paramount law, or by some principle of the common law, or by the provisions of a statute. As said by Chase, C. J., in the License Tax Cases, 5 Wall. 469: "This court can know nothing of public policy except from the constitution and the laws, and the course of administration and decision." The policy of the state "can be ascertained only by reference to the constitution and laws passed under it, or, which is the same thing, to the principles underlying and recognized by the constitution and laws": Lux v. Haggin, 69 Cal. 308. Though public policy is a doctrine on which courts and judges should proceed with caution, still there are many cases to be found in the books of

reports in which the doctrine has been applied. Marriage brokerage bonds, contracts in restraint of trade, contracts by expectant heirs, or in consideration of illicit cohabitation, or such contracts as may injuriously affect the administration of justice, or to procure a contract from a public officer, or to pay for an appointment to office, or aiding in procuring an appointment, or to pay for obtaining a pardon, or injuriously affecting the public interest as to the location of the terminus of a railroad, afford instances of the application of the doctrine: See 5 Rob. Pr., c. 42, pp. 407, 433, where many cases are cited and commented on.

In considering this question, our attention must necessarily be given to the statutes of this state, in regard to attorneys and counselors at law. They are to be found in the Code of Civil Procedure, and in the sections to which reference will be herein specially made. The following provisions will be found in the statute: Any citizen or person resident of this state who has bona fide declared his intention to become a citizen in the manner required by law, of the age of twenty-one years, of good moral character, and who possesses the necessary qualifications of learning and ability, is entitled to be admitted as an attorney and counselor at law in all the courts of this state: Code Civ. Proc., sec. 275. Every applicant for such admission must produce satisfactory testimonials of good moral character, and undergo a strict examination as to his qualifications in open court: Sec. 276. If, upon examination, he is found qualified, he shall be by the court admitted as such attorney and counselor, by an order entered to that effect upon its records, and a certificate of such record shall be given to him by the clerk of the court, which certificate shall be his license: Sec. 277. On his admission, he must take an oath to support the constitution of the United States and the constitution of this state, and faithfully to discharge the duties of an attorney and counselor to the best of his knowledge and ability: Sec. 278. A roll of attorneys is to be kept by a prescribed public officer, which the applicant, on his admission, is required to sign: Sec. 280. Any person practicing law in any court, except a justice's court or a police court, without having received a license as attorney or counselor, is declared to be guilty of a contempt of court: Sec. 281. Section 282 of the same code prescribes the duty of an attorney and counselor, by the provisions of which he is required, inter alia, to support the constitution and laws of the United States and

this state, and to maintain the respect due to the courts of justice and judicial officers. Rules of duty are further prescribed in this section, which are intended to regulate and control the conduct of an attorney and counselor with regard to the public, and to those in whose behalf they appear in court, and exercise their appropriate functions. Authority is conferred on him in the discharge of his duties and functions, peculiar to his character as such: Sec. 283. He is subject to the authority of the courts, and may be, for cause shown, suspended or removed, and deprived of the right to pursue his profession, by the supreme court or either department thereof, or by a superior court: Sec. 287. One of the causes for which he may be removed or suspended is the following: "Lending his name to be used as attorney and counselor by another person, who is not an attorney and counselor ": Sec. 287, subd. 4.

The foregoing provisions taken from a public statute are enacted not only in the interest of those who employ the services of attorneys, but in the interest of the community or public are large. They concern the administration of justice, always a subject of public concernment, and relate to a class of officers of courts in which the people of the state have an abiding interest. Bolte was never an attorney and counselor at law. He had never been admitted to the privileges or authorized to exercise the rights of an attorney and counselor. He had never assumed or been authorized to assume any of the functions of an attorney and counselor, nor was he bound by the obligations of such a position.

Now, if either of the attorneys who contracted with Bolte had lent to the latter his name to be used by him as attorney and counselor, he would have been guilty of a violation of the elause above quoted from section 287 of the Code of Civil Procedure, for which he would have been liable to be removed or suspended, from the practice of his profession. Was not Bolte really allowed to use their names in the prosecution of a matter in litigation? Under the employment of them as attorneys, made through Bolte's procurement, they engaged to use their faculties as attorneys and counselors at law for his benefit, and that, too, in a cause in which he had no interest as a party. By the terms of the agreement he was to derive a benefit from the rendition of their services in their professional capacity, and to receive a share of their fee, as if he had been concerned with them as a regularly admitted attorney. He is thus enabled, through their agency, vicariously, and not