Tilghman C. J.
This is an action on the case, brought by Philip Rank, the defendant in error, against Curtis Ream, for debauching the plaintiff’s daughter, and getting Her with-child, &c. by which the plaintiff lost the service of his daughter, &c. The question is, whether trespass was not the proper action, and whether case can be supported.
That actions of trespass have been brought in such cases, for a long period of time in England, cannot be denied. Neither can it be denied, that actions on the case have also been supported, both in England and in this country. The plaintiff’s counsel have cited, Lyon v. Hamilton, tried before Judges Yeates and Smith, in the Circuit Court of Lancaster county, at April Term, 1800; also, Spear v. Patterson, and Zurtman v. Miller, in the Common Pleas of Lancaster county. In support of the action on the case, we have likewise the authority of Martin v. Payne, in the Supreme Court’of New York, 9 Johns. 387. It is to be considered, then, whether there be any thing so contrary to principle, in the action on the case, that, notwithstanding the authorities which have been mentioned, it would be absurd to support it. The ground of this action is, the injury sustained by the plaintiff in the loss of the services of -his daughter. When the defendant has also committed á trespass on the plaintiff’s property, (as by entering his house, &c.) the plaintiff
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may very properly bring trespass, and lay the debauching of his daughter and loss of service, &c. as a consequential injury. But where no trespass has been in truth committed, it seems rather absurd to bring the action of trespass. If my servant is beaten, in consequence of which I lose his service, it is reasonable that
trespass should be the form of action, because a trespass was in fact
committed; but if he is seduced from my service,
without force, I may allege the truth, and recover damages for the loss of service, in an action on the
case. Of this there is no doubt. Is there any thing then, in the seduction of a woman and getting her with child, which necessarily imports a
trespass? It should seem not, because the seduction operates on the mind, to which no bodily force can be applied; and the mind being corrupted, the child is begotten with the woman’s consent. Indeed, if the act is done forcibly, and against her will, it is a rape, for which, being a felony, no action will lie. In order to support an action of trespass, a
fiction is resorted to, viz. that the defendant committed an assault on the woman. I will not say, that such fiction, resting on long practice, may not be supported; because it is not very material, in what form the suit is brought, provided the cause be tried on its merits ; but I may safely say, that a different form, in which truth is told, and fiction discarded, is not only maintainable, but
most proper. Without deciding, therefore, that trespass would not lie, I am of opinion, that the actiqn on the case is good.
Gibson J. concurred.