1. The defendant moved in this Court to dismiss the action for that on the face of the complaint it appeared that the ultimate purpose of the plaintiff in making the contract sued upon, was illegal, in that he intended to-violate the Sunday laws of South Carolina. As a motion of this character is based entirely upon the facts stated in the *352complaint, and as it does not appear from the said pleading that the sale of cattle in market on Sunday is forbidden by the laws of the said State, and as we cannot take judicial notice of such laws (Hooper v. Moore, 5 Jones, 130), it is very plain that the motion must be denied.
2. On the trial below, however, the defendant proved that by the statute laws of South Carolina (General Statutes 1631, 1632) such a sale was unlawful, and it prayed the Court to hold that, from the facts alleged and the evidence, the contract “was based upon an illegal consideration and was void.” The Court very properly declined to give the instruction, as there is not the slightest illegality either in the consideration or promise. The consideration was the sum of $58.50, and the promise was to transport the cattle so as to reach the city of Charleston on Saturday. We presume that the defendant intended to present the question as to the effect of the alleged illegal purpose of the plaintiff, but as this point is not raised by the prayer for instruction, we do not feel at liberty to pass upon it in this appeal. The distinction to which we have adverted is universally recognized, and is clearly expressed by Pollock in his work on Contracts, 317. He says that, “ An agreement is the complex result of distinct elements and the illegality must attach to one or more of those elements in particular. It is material whether it be found in the promise, the consideration or the ultimate purpose.”
3. The defendant asked the Court to instruct the jury that sales of property on Sunday being forbidden by the laws of South Carolina, the jury are not to consider any evidence offered by plaintiff tending to show a market in Charleston, S. C., on Sunday, or the market price on that day in estimating his damage, if he has sustained any.” This instruction was refused, and in this we think there was error. It will be noted that there was no evidence as in McAbsher’s case, ante, tending to explain the nature of the customary Sunday *353transactions at said market, to the effect that the sales were not to be completed on that day, and as such completed sales were prohibited by law, it must follow that there could have been no Sunday market price. The defendant was entitled to the instruction. There must be a' new trial.
Error.