By the Court, Bronson, J. [658] A plaintiff is not bound to give notice of the vacatur of an order under such circumstances, if notice is at all necessary. Where a defendant obtains an order at so late a day, it behooves him to look to his cause, and if he learns that the order has been revoked, to ask the circuit judge to put off the trial for want of witnesses, who may then exercise his discretion in the matter. The plaintiff was regular, and the motion would be denied, but that the defendant now satisfies me that he is entitled to a commission. This case is different from that of Smith v.
Bowen, (2 Wendell, 245;) there the conduct of the plaintiff was oppressive; here the defendant was in fault for not sooner obtaining his order. The inquest is set aside on payment of costs.