The framer of the Act must, therefore, have understood this, and in giving the action for the "injuria," not the mere pecuniary "damage," he not only made the Act conform with the general theory of the common law, but brought it within its liberty-protecting principles.
But he went further—following the Statute of James I, and knowing that in all cases the injury imports some damages, he provides that, in this case, for the better protection of trade, that damages, or any damage, shall be threefold.
This being all so, it follows that, as no action is given in the absence of "injuria," the Act positively contemplates and requires that some right, either at common or statutory law, or under the Constitution, must be obstructed or hindered by some part or act of the conspiracy, &c., to justify a suit under this statute.
But that means, and must mean, that two things are absolutely necessary to found a civil action. First, that two or more have combined in restraint of trade, or one or more have attempted to monopolize; and, second, that through that combination, or attempt, or some act a part of it, the plaintiff has been hindered in some right. Damage alone will not do; its absence alone is also not a defence.
This is well expressed in Rourke vs. Elk, 75 N. Y. App. Div., at p. 148.
This, then, brings us to the subject matter of this chapter.
As national and constitutional rights are, if not entirely, at least chiefly, the liberty or right to enjoy other rights; and as those other rights are, as we have already explained, also chiefly, if not entirely,
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