Baker

This action, was brought to set aside a decree of the probate court, on the ground that it was procured by defendant herein without notice to the plaintiff, and without any appearance or knowledge on his part, and -that it was based on false testimony.

The court below finds as above set forth, and in addition finds as follows:

These findings are contradictory. In the finding first above quoted, it is found that Castlehun “assumed to represent the plaintiff at the hearing and making of said decree of distribution.” When it is said a party assumes to represent the plaintiff, the meaning, in our judgment, is, that he took upon himself to represent the plaintiff, and did represent him. It cannot, then, be said that plaintiff was not represented (Denton v. Noyes, 6 Johns. (N. Y.) 296, 5 Am. Dec. 237 ; Brown v. Nichols, 42 N. Y. 26 ; Abbott v. Dutton, 44 Vt. 546 , 8 Am. Rep. 394 ); and the finding 'to that effect, in the finding secondly above quoted, contradicts the previous finding.

Under these circumstances we reverse and remand the cause for distinct finding on this point, on the evidence already given in the case, or on such evidence and any further evidence which may be…