Page:Federal Reporter, 1st Series, Volume 3.djvu/707

 700 FEDERAL EËPORTER. �Jûd^e Nelson aîlôwed counsel fees where he set a sale asîde by consent, though it was not for any inadequacy of priee. 2 Danl. Ch. Pr. 1291, 1292; 2 Newl. Ch, 386; Anon. 2 Ves. 286; The Sparkle, 7 Ben. 528, 536; Drake v. Goodridge, 6 Blatchf. 531. Interest on the first purcliaser's money ia an ele- ment of expense to be allowed, and with us, -where ail money going into the registry pays a commission on disbursement by the clerk, that ehould be also allowed. The authorities ail say that the applicant must also pay the costs incident to his application; but this does not include the ordinary costs either of the original sale or the resale. In Farlow v. Weildon, 4 Madd. 243, supra, the application was refused be- cause the advance was not enough to pay the costs of adver- tising the sale, which shows that it is to be paid by the fund. These costs and expenses to be paid by the bidder cannot be fixed for ail cases, but must depend in each case on its own circumstances. �There is a question made as to the mode of conducting the resale, whether it shall be again by public auction as before, and on the same terms as to notices as in the original decree, or by simply invitory bids before the master in his oiEce. In England the resale was conducted precisely as the original sale, and both were by biddings before the master, entered in a bock signed by the bidders, and continued until the bid- dings were ended. "Opening the biddings" was simply a con- tinuation of this process, but, obviously, it is inapplicable to our method of selling at public outcry, and I think our re- sales should conform to the method of the original sale. But as to the notices, the requirements of the mortgage having been complied with in the original decree, and this being only a resale, and but a continuation of the former sale, I am of opinion the resale may be made on such notice as the court may prescribe, having in view to advertise the fact that the former bids have not been accepted, and that a resale will be had, commencing at the amount of the advaneed bid now offered. Let a decree be drawn opening the biddings upon the payment into court of the amounts offered, the payment to the first purchaser of his allowanoes for expenses, includ- ����