(1) On behalf of the Government, that the protest may be sustained so far as it relates to entries 218241, 273600, and 160687.

(2) On behalf of the protestant, that the protest may be overruled so far as it relates to entries other than those herein before enumerated.

(3) That the above-enumerated protest be, and hereby is, submitted for decision upon this stipulation and the papers of record herein.

In that case Judge De Vries, who wrote the opinion of the court, said:

It will be particularly noted, however, that the powers of the particular Assistant Attorney General over the particular class of claims against the Government is by the especial statute made complete, to wit, that he and his assistants "shall have charge of the interests of the Government in all matters of reappraisement and classification of imported goods and of all litigation incident thereto, and shall represent the Government in all the courts and before all tribunals wherein the interests of the Government require such representation." This is a broad and complete grant of power. It is difficult to understand how if particular counsel is fully empowered to "represent" the Government in all courts and before all tribunals "wherein the interests of the Government require such representation" he is not fully empowered to so conduct such litigation as to his judgment seems meet and proper subject to the power of the Attorney General, who supervises his conduct and proceedings.

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If, therefore, the particular Assistant Attorney General is authorized and empowered by Congress to unqualifiedly "represent" the Government that unlimited investment of power qualifies the particular Assistant Attorney General to do all things that the principal might do in the particular classes of cases, included within which obviously is the power to dismiss a particular action, to confess judgment in a particular case, or to compromise a particular proceeding. And the holding of the court was as follows:

In accordance with the general rule that an attorney may confess judgment, or consent to a decree against his client, or compromise where there is nothing apparent of imposition, unfairness, or dishonesty, the importers' counsel in this case had authority to enter into an agreement or stipulation for the overruling of his protest as to certain entries. Subsection 30 of section 28 of the tariff act of 1909, creating the office of the Assistant Attorney General in charge of customs litigation, confers upon him similar authority. It follows that a stipulation between the counsel for the importers and the Assistant Attorney General that a protest be sustained in part and overruled in part is valid and binding upon the board of United States General Appraisers.

The stipulation in the case at bar, as already stated, is a question of fact, but if it is thought to be a question of law the stipulation filed in the case of Wanamaker v. United States, 12 Ct. Cust. Appls. 193, T. D. 40171, was also in respect to a question of law. In fact it involved the same question raised in the case at bar, viz, whether or not the merchandise was original drawings in pen and ink under paragraph 652 of the Tariff Act of 1913. In that case the question presented to the court was whether certain drawings in pen and ink were properly assessed for duty by the collector at 25 per centum ad valorem under paragraph 332 of the act of 1913, as cardboards, decorated,

embossed or printed, or whether they were entitled to free entry under paragraph 652 of the act of 1913, as original drawings in pen and ink.

The question involved in that case was submitted to the Board of General Appraisers, now the United States Customs Court, on the following stipulation:

It is hereby stipulated and agreed by and between counsel that the merchandise covered by this protest is of a similar character in all material respects to that which was the subject of a decision in U. S. v. Bertrose Company, Suit No. 2124, T. D. 39083, therein held to be free of duty, under paragraph 652 of the tariff act of 1913, and that the record in said T. D. 39083 may be and hereby is incorporated in this case. Said protest is submitted for decision on this stipulation and all the papers in the case.

It was held by the court as follows:

The stipulation is to the effect that in the judgment of the stipulating parties the drawings in question are of a similar character in all material respects to another importation which was held to be free because it was original. Now, the fact that they are similar does not prove originality. Neither does it prove that they are first or second replicas. Hence we do not think the stipulation warrants us in sustaining the claim of the importer. The protest is therefore overruled.

The Court of Customs Appeals was unable to concur in the views as expressed by the court below, and it was held:

A stipulation that certain pen and ink drawings are "of a similar character in all material respects" to those in United States v. Bertrose Co. (11 Ct. Cust. Appls. 277; T. D. 39083) refers to the character of the merchandise for purposes of classification; involves a concession that they are, as were those, "original" within the meaning of the provision of paragraph 652, tariff act of 1913, for "original drawings and sketches in pen and ink"; and effects their classification thereunder instead of under paragraph 332 as manufactures of paper.

The Court of Customs Appeals also passed upon a stipulation in the case of Draz v. United States, 8 Ct. Cust. Appls. 382, T. D. 37641. In that case there was a disposition to honor the stipulation, but there was a question as to what the stipulation meant. Of course, if stipulations are faulty or ambiguous there is no obligation upon the court to follow them.

The decision by the United States Supreme Court in the case of United States v. Babbitt, 104 U. S. 767, 768, is precisely in point. Under the provisions of section 7 of the act of June 18, 1878 (20 Stat. 145), Babbitt brought suit against the United States for certain pay claimed due as a cadet at West Point. The question was whether or not, in the question of longevity pay, within that statute, for an officer of the Army of the United States under that act, his services as a cadet at West Point could be taken into account. The court below decided that it could not. The record, however, showed that the Attorney General, after an adverse decision was announced by the court, consented to a pro forma judgment against the United

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States in favor of the claimant. Upon the authority of Pacific Railroad v. Ketchum, 101 U. S. 289, the Supreme Court of the United States held that the consent of the Attorney General to the judgment against the United States in favor of this claimant was binding upon the United States.

The case is important as controlling the issue in this case. It is an express instance where the Attorney General acting under his general powers consented to a judgment against the United States which would otherwise be against the claimant. It establishes that the powers of the Attorney General in confessing judgment against the United States are similar to the powers of attorneys in civil actions. In the case at bar the act of the Assistant Attorney General in stipulating that the merchandise in question was works of art and sculptures had the effect of confessing judgment, and, according to law, this court should honor the stipulation.

There must have been, since the foundation of the Government, thousands, yes millions, of cases stipulated, yet but very few cases have become the subject of controversy. This is significant. It shows that the courts almost invariably permit parties to stipulate, not only as to the facts, but as to the law. Indeed, many judges of trial courts now ask, when a case is called for trial, whether or not a serious effort has been made to secure a friendly settlement.

The attitude of the courts in respect to the settlement of controversies has always been one of friendliness. They have welcomed the getting together of the parties for a peaceable settlement of their differences, realizing that with the friendly settlement of such differences the time and expenses of the court are saved. All kinds of cases involving both law and fact have been settled in great numbers since the earliest Colonial days. Many controversies over wills have been settled. For instance, a person dies leaving a valid will for the disposition of his property, but the heirs get into a quarrel in respect to it and finally a compromise agreement is reached between them, and the court enters a decree giving effect to the compromise. In doing so it will not be claimed that the court acts according to law, because the property should, in law, be disposed of according to the provisions of the will.

In the case of Harris v. Harris, 99 So. 913; 211 Ala. 144, the court said that the form of judgment or decree on compromise of will cases may be a matter of agreement and compromise between the parties sui generis properly represented, but where the form of judgment on compromise of a will case can not be agreed on because of the absence of interested parties, it may take the usual form of judgment by jury and verdict against will.

In the appeal of Hannan, 199 N. W. 423, the court held as valid a settlement agreement between a testator's wife, who had brought an

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action to avoid her election to take under a will, and the testamentary trustee, which agreement had been approved by the probate

court.

Compromises are favored by the law. Mahon v. Mathews, 48 App. D. C. 303. The law favors settlement of litigation. Mitchell v. Louisville & N. R. Co., 194 Ill. Appl. 77. Equity favors settlement of family disputes by agreement. Haven v. Anderson, 147 N. E. 791. Courts favor stipulations between the parties and regard them as the law of the case. Cohn v. Cohn, 200 N. Y. S. 431, 120 Misc. Rep. 731.

In the case of Wyss v. Bookman, 235 S. W. 567, the court held that a court is entirely without authority to enter any judgment by agreement other than that falling strictly within the stipulations of the parties.

In the case of Dickson v. Niles, 204 N. Y. S. 15, the court said that parties to an action may mutually elect to have the action determined under a law which might otherwise be inapplicable, such election having the force of an agreement or stipulation.

In re Cushman, 163 N. Y. S. 712; 177 App. Div. 127, the court held that it is always competent for litigants to waive rules of law or statutory provisions in their favor, where public policy is not involved, and after doing so they can not assert such rights.

This court may not be concluded by a stipulation, but it should, in acting upon them, be governed generally by the wishes of reputable attorneys, if not against the public policy. Their agreement as to the law or facts should be given effect.

It is a great injustice to dispose of this case in the manner proposed. It takes the plaintiffs by complete surprise. They doubtless rely upon the stipulation, and, if it had not been made, would have produced evidence to support their contentions. It is manifestly unjust to them to dispose of this case in such a summary manner. If the stipulation is not followed and honored, the case should be restored to the calendar for trial.

In the case at bar the attorneys of the respective parties are reputable. They have practiced for many years before this court. Their standing is of the best, and their word has never been called in question. Even though the court above may not hold that this court is concluded by the stipulation, we do not think they will regard giving effect to the stipulation as error. Courts may not be under obligation to honor stipulations covering questions of law, but they will, in acting upon them, be governed generally by the wishes of reputable attorneys, if not against the public policy. In the case at bar the attorneys have agreed that certain importations are works of art. We do not think it is for the court to deny them the benefits of their action.

For the reasons stated we hold the merchandise properly dutiable at 20 per centum ad valorem under paragraph 1449, Tariff Act of 1922, as works of art. The protest is sustained to that extent. In all other respects it is overruled. Let judgment be entered accordingly.

DISSENTING OPINION

WAITE, Justice: I differ from my colleagues in this case on the question as to whether the court should surrender its judicial functions to an agent of the Government not vested with authority and be bound by a stipulation which deprives the court of its judicial status.

The importation in this case is described as alabaster articles consisting of lamps, and we find by reference to the invoice that they are articles claimed to be more or less artistic, one of which is valued at 150 lire, or the equivalent of about $8, and the others at 75 lire, or about $4 apiece. The stipulation in question is as follows:

It is stipulated that the merchandise covered by this protest consists of works of art, composed in substantial part of sculptures in the form of carved alabaster human or animal figures; and that upon this stipulation and the official record the protest may be ordered submitted.

It is there agreed by the importers and the assistant to the Assistant Attorney General that they are works of art composed in substantial part of sculptures in the form of carved alabaster human or animal figures and that the protest may be ordered submitted upon this stipulation and the official records. Having been submitted, the majority of the court hold that the stipulation is binding upon the United States and this court, and that it warrants a decision by the court that the importation in question consists of works of art, as provided for in paragraph 1449, at 20 per centum ad valorem. In United States v. Perry, 146 U. S. 71, at p. 75, the Supreme Court decided that works of art are divided into four different classes, viz:

1. The fine arts, properly so called, intended solely for ornamental purposes, and including paintings in oil and water, upon canvas, plaster, or other material, and original statuary of marble, stone, or bronze. * * *

2. Minor objects of art, intended also for ornamental purposes, such as statuettes, vases, plaques, drawings, etchings, and the thousand and one articles which pass under the general name of bric-a-brac, and are susceptible of an indefinite reproduction from the original.

3. Objects of art, which serve primarily an ornamental and, incidentally, a useful purpose, such as painted or stained glass windows, tapestry, paper hangings, etc.

4. Objects primarily designed for a useful purpose, but made ornamental to please the eye and gratify the taste, such as ornamented clocks, the higher grade of carpets, curtains, gas fixtures, and household and table furniture.