tion with the derelict, and left to others the labor and risk of bringing it to a port of safety. By sO doing they lost the right to claim compensation for what they had done. The libel )Dust therefore be dismissed, but no costs are awarded against the libelants, and the attention of the underwriters is called to the meritorious services disclosed by the evidence to have been rendered by the mate, and also to the fact that, when the master proposed to strip the derelict, the mate advised against it, with the result that great hardship was en· dured by him, accompanied with peril. in an effort to save property in which they were interested.
THE FRISIA AND THE JOHN KITCHIN 'V. JOHN
N. PARKER. l
(District Court, E.
COSTS - FOREIGN CHARGE.
n. NIJ'UJ York.
May 11, 1885.)
CUSTOMARY RATE -
In the absence of evidence to show the existence at the place of executing a commission of a customary rate of charges for commissioner's services, or for like services, proof that the sum actually paid the commissioner is a reasonable sum for like work at the place of payment is sufficient to warrant the allowance of the item as a disbursement properly made to secure the execution of the commission. See S. C. 24 Fed. Rep, 495.
In Admiralty. Jas. K. Hill, Win,q ft Shoudy, for libelants. Benedict, Taft et Benedict, for the John N. Parker. BENEDICT, J. In the absence of evidence showing the existence at the place of executing a commission to take testimony of a customary rate of charges for services rendered by the commissioner in executing the commission, or for like services, I am of the opinion that proof of the fact that the sum actually paid the commissioner is a reasonable sum to pay for like work at the place of payment will warrant the allowance of the item as a disbursement properly made to secure the execution of the commission. If the decision in the case of Sedgwick v. Gl'innell, 10 Ben. 6, was intended to apply to a case where there is no proof of the existence at the place of executing the commission of a customary rate of charges for like services, I am unable to agree with it. In this case the proof is, in my opinion, sufficient to justify the allowance of $130.25 as a proper disbursement to secure the execution of the commission.
by R. D. & Wyllys Benedict, Esqs., ofthe New York bar.
;rOSSLYN 11. PHII,LIPS.
w: D. Michigan.
REMOVAL Oll' CAUSE-COSTS-ATTORNEY'S FEE ON .REMAND-AcT Oll' Where 8 case is remanded to the state court on the ground that
1875. the circuit conrt has no jurisdiction, the court may allow such attorney's fee 8Il would ordinarily be allowed on the final disposition of the cause.
Motion to Allow Attorney's Fee. Oeo. F. Edwards, for plaintiff.
BROWN, J. This case was remanded to the circuit court for the county of Berrien upon motion of the plaintiff. He now moves for the allowance of a reasonable attorney's fee under the fifth section of the act of March 3, 1875. Prior to this act the rule had been never to allow costs where a case was dismissed for want of jurisdiction appearing upon the face of the record. It was considered that the court, having no jurisdiction of the case, could not even render a judgment for costs; but by the act of 1875 this rule is so far modified as to permit the court, in remanding a case, to "make such order as to costs as shall be just." The third section of the same act aiso requires a bond to be given for filing a transcript in the cil'l"uit court, and for "paying all costs that may be awarded by the said circuit court, if said court shall hold that the suit was wrongfully or improperly removed thereto." Mansfield, etc., R. Co. v. Swan, 111 U. S. 379, 386; S. C. 4 Sup. Ct. Rep. 510. This case, however, throws no light upon what costs the court is authorized to impose. The general fee-bill makes no provision for an attorney's fee upon motions, and it has not been our practice to allow one, unless it could be imposed as a condition of granting the motion; as, for instance, in the case of applications for continuance. But as the clerk's fee for filing the transcript is the only other item of cost likely to arise in a removed case before the motion to remand is made, and as this is always paid by the party procuring the removal from the state court, it seems to us that the statute must have intended to permit the conrt to impose a reasonable attorney's fee as a compensation to the party for his services in procuring the remand. In ordinary cases, these would be the only costs to which the language of the act would attach, as the motion to remand is usually made before any further proceedings are taken in the circuit court. We think it competent for the court to allow such a fee as is ordinarily awarded on the final disposition of a cause. viz., q, docket fee of $20.
by Robertson Howard, Esq., of the St. Paul bar.