I concur in giving judgment for the defendant. I had come to a different conclusion, supposing that this case could not be distinguished from the case of Jackson v. Hart, (12 Johns. Rep. 77.) But, as I dissented from the opinion of the court in that case, and my brethren who were parties lo it, thinking it is not in the way here, I feel no hesitation in ’saying the plaintiff is not entitled to recover, I put it on the *524ground, however, that 'neither Peter .• Shultze, the lessor of tita plaintiff, nor the other Peter .'Shultze mentioned in the case, was the person'intended as the patentee. it appearing, by the. case¿ without “entering particularly into the .testimony,, that the latter ■was not born at the commencement, of. the revolution, and the former-not, coming within the description of the persons'-men* tioned in the act of the legislature, under which the'patent was issued, and to which it refers. That-the identity -of'‘the patentee, is a matter that may be inquired ipto in this 'collateral, way, is settled by the case of Jackson v. Stanley, (10 Johns. Rep. 136.,) and which‘casé I understand it.was not intended ,to'overrule by the decision in Jackson v. Hart. An inquiry asto the idea* tity.of.the patentee, dpes noty in ,any manner, contradict, or make void, the patent; nor does it imply.that there is not a person in es.se capable of taking under the grant, ft only goes to show that-the person claiming to be the .patentee was not. such person. If it should appear that he was the .person in» tended, ’ the- inquiry must there'stop.If the C.ommissionei’s of the land office had mistaken their powers, and made a grant to a person not coming within the description in the act, and the patent was sought to be vacated on that .ground, there; can be no doubt that it must be done by some direct judicial pro* eeeding. But an inquiry into the-identity of a patentee, would not come within the scope' of a' scire facias. ' This can- only arise when some person comes forward to assert a right und'ér' the patent; it is then, and then only, that it can be objected to him, that he is not- the patentee, although he may have the same name. It is altogether a mistake that such, an inquiry Is an attempt to vacate the patent.' It leaves it in full force and effect, according .to its original intention and operation. This is not a naked grant to Peter Schultze. The .patent refers to-the act under which it was issued, containing a description of-the persons'intended to be embraced within the bounty of the legislature. This may be considered as matter of description adopted by the patent, and which necessarily opens the door to let in the inquiry,- whether the -person claiming to be the patentee answers such description ? The identity Of the-grantee. as well as of the thing granted, must, generally speaking, partake, more, or less, of a latent ambiguity, explainable by testi* mpáy, dehors the grant.; It cannot be that this inquiry, is restricted to the single case of ambiguity occasioned, -by there-appearing to be- two persons bearing the name of the patented *5251 can discover no sound reason for such restriction, and I am persuaded that the rule, thus understood, is too limited to meet all the cases that may arise, necessarily requiring its applieation. It is, therefore, upon the broad ground that it is always open to a defendant in ejectment to show that the lessor of the plaintiff is not the person intended by the patent under which he sets up his claim, although he may bear the same name, Shat I concur in the judgment for the defendant.
Judgment for the defendant.