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BOSLEY v. THE SUSQUEHANNA CANAL. 65
name; yet, it is evident, that strictly speaking he has not done so;
because no process has been prayed against it, by that name alone
by which it is made capable of being sued; and because it also
appears, that instead of asking to have the writ of injunction
directed to The Proprietors of the Susquehanna Canal, it is only
prayed for against some of their agents, that is, their governor and
directors, without having the corporation itself sued or called upon
to answer, or restrained in any way whatever. This, however, is
an objection of which this body politic may have no wish to take
advantage; but considering it as an unimportant misnomer they may
come in, waive it, answer by their true name, and take defence
upon the merits. I shall therefore pass over this objection for the
present, and leave it to be relied upon or waived by the defendants
as they may think proper, (b)
From what has been set forth in the bill and its exhibits it ap-
pears, that this body politic, under their act of incorporation had
acquired a fee simple estate in a certain parcel of land in Cecil
county, lying along the left margin of the river Susquehanna; over
which, by virtue of the same authority, they have formed a navi-
gable canal, (e) As to which it is expressly declared, 'that the
said Canal, when completed, shall be kept in good repair by the
said corporation for the use of the public.' (d) These defendants,
it appears then, are the owners in fee simple of a parcel of land;
which land, so far as it is dedicated to the use of the public, has
been subjected to the servitude of a highway; the tolls, for the
privilege of passing along which, alone belong to the corporation;
and consequently, this Canal, with its appurtenances and neces-
sary towing paths, must be considered and treated in like manner
as all other highways. Because all navigable rivers and great
roads or canals, common to all passengers, and which are to be
kept in repair for the use of the public, are in law deemed high-
ways. And the acts of Assembly, by authority of which they are
laid out, formed, and kept in repair, are public laws of which the
court is bound to take notice, (e)
I have met with no instance, in the English books, and but one
case among the records of this court, in which a defendant has
been apparently ordered, by an injunction of this kind, to do, or
(6) Binney's Case, 2 Maud, 106,—(e) November, 1783, CD. 28, s, 6—(d) Novem-
ber, 1783, ch. 23,s. 4.—(e) Com.Dig. tit. Chimin, (A. 1.) 1 Stark. Evid. 163, 400;
Agnew v. The Bank of Gettysburg, 2 H. & G. 479.
9 v.3
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