cuap. 11] THE POWERS OF THE GOVERNOR ~~ 145
a fiat could no doubt be granted in every case. But a fiab
sould also certainly be granted, and the case heard in
England. On the other hand, it does not seem that a fiat
could be granted for the hearing in England of a case
against the Crown in its Colonial capacity.
This case illustrates the fact that the Crown possesses
in the Colonies all its English prerogatives, save in so far
as they are diminished by legislation expressly or tacitly
necessarily excluding them, even if they cannot be exercised
by the Governor. This has been laid down in express terms
by the Privy Council in the case of The Liquidators of the
Maritime Bank of Canada v. The Receiver General of New
Brunswick? Thus it has been held that in a Colony the right
to a felon’s goods attaches ? the priority in bankruptcy and
* See Holmes v. The Queen (1861), 31 L. J. Ch. 58 ; Palmer v. Hutchinson
(1881), 6 App. Cas. 619; Frith v. The Queen (1872), 7 Ex. 365. The first
case is cited with approval by the High Court in Strachan v. The Common-
wealth, 4 C. L. R. 455, at p. 463. Dinuzulu’s case is hardly an exception,
for the Imperial Government assumed that it was liable for the debt ; Parl.
Pap., Cd. 4194, p. 115.
Similarly, the Crown is exempt from having its vessels seized for damage
done or for lability for salvage (sce Young v. 8.8. Scotia, [1903] A. C. 501).
If any action is brought which does not fall within the terms of a statute,
it must fail (Colonial Government v. Makuza, 27 N. L. R. 493; Methuen
v. Colonial Government, 17 N. L. R. 31; Binda v. Attorney-General, 5S. C.
284, all cases of claims in tort). A fiat is granted under the Colonial Acts
a8 a rule of course (asin Canada : see Mr. Aylesworth in House of Commons,
May 15, 1909 and December 15, 1909, Debates, xcii. 6751; xciit. 1554-6),
and the Government will give effect to the decision loyally. Cf. also Rex v.
Fisher, [1903] A. C. 158, at p. 167, where it was held in a case of petition
of right that it was no answer to a claim that no appropriation was included
‘nan Act.
[1892] A. C. 437.
* Cf. in re Bateman's Trust, 15 Eq. 355. This was of course prior to
1870, when by 33 & 34 Vict. c. 23 forfeiture for felony was abolished in
England. It has also been abolished in the Colonies.
* New South Wales Taxation Commissioners v. Palmer, [1907] A. C. 179;
Attorney-General of New South Wales v. Curator of Intestate Estates, [1907]
A.C. 519. These overrule in re Baynes, 9 Queens. L. J. 33; Clarkson v.
Attorney-General of Canada, 15 0. R. 632; 16 0. A. R. 202, and the
opinion in 1900 8. A. L. R. 11. The Imperial Bankruptcy Act, 46 & 47
Vict. c. 82, bars the prerogative by its express terms.
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