concurring in part.
The parties to this appeal offered a stipulation to the United States Customs Court below, stating the issue to be decided as follows: ‘
*16(3) The issue is whether or not a pure-bred animal otherwise qualified for duty-free entry under Paragraph 1606, Tariff Act of 1930, as amended, may be entered duty-free under the aforesaid tariff provision by a United States resident-citizen who is a co-owner where the other co-owner is a non-citizen, nonresident of the United States.
•The above stipulation was entered, “subject to the approval of the Court.” The trial court, in its decision, rephrased the issue as follows:
The issue here litigated, is whether the male thoroughbred horse “Bob,” imported into the United States for breeding purposes, is entitled to duty free entry under paragraph 1606(a), Tariff Act of 1930, as amended. [Emphasis added.]
The appellant2 at the onset argues that the trial court erred in not confining its decision to the issue as stipulated by the parties. The stipulated issue was subject to the court’s approval. The record does not show that the trial court gave its approval. I therefore believe that, the trial court did not err in rephrasing the issue so as to state what it felt was actually litigated.
At the onset of its opinion, the trial court understandably experienced great difficulty in deciding who imported the animal in question. The documents referred to in the record state the following relationships:
TITLE OF DOCUMENT OFFICE IDENTIFIED PERSON IDENTIFIED
1. Bill of Lading 2. Waybill Shipper and Consignee Carrier Owner or Consignee Mr. Mariategui Pan-American World Airways, Inc. Air Express Int’l. Agency, Inc.
3. Entry at Miami (Document not identified further) Nominal Consignee or Agent Actual owner for customs purposes Air Express Int’l. Agency, Inc. Mrs. Liz Whitney Person
4. Declaration accompanying animals offered for importation Agent Offeror for importation J. Mariategui Liz Whitney Person
5. Declaration on free Entry of Animals for Breeding Purposes U.S. Citizen Mrs. M. E. Person
6. Certificate of Pure Breeding Importer Mrs. Liz Whitney Person and Jose F. Mariategui
7. Letter from Department of Agriculture to Miami Customs Collector Joint Owners U.S. Citizen and a non-citizen.
*17The trial court, after reviewing the above documents, stated:
Even if it be assumed that plaintiff, a citizen, coowner with an alien, alone imported the horse “Bob” (and we are not convinced the record shows this), the question is whether she is such an importer as paragraph 1606 contemplates. * * * [Emphasis added.]
Paragraph 1606(a), cited by the court, provides for the duty free entry of certain animals under certain conditions:
(1) The animal must be a pure bred;
(2) The importer must be a United States citizen;
(3) The animal must be imported specially for breeding purposes;
This condition is satisfied either when the importer intends to use the animal himself specially for breeding or where the importer intends to sell the animal for such purposes;
(4) Certain certificates and affidavits must be executed in the manner set forth in the statute.
The trial court in its decision assumed that condition (2) had been met. I believe this was error. To qualify for the duty free entry of animals it must be decided that a United States citizen did in fact import the animal. If from the evidence before it, the trial court determines that a citizen did not in fact import the animal (and the court below in this case was not convinced that the evidence showed this) the inquiry is at an end.
The trial court, after assuming that a citizen imported the animal, proceeded to decide whether that citizen “could, legally, either use the horse or sell it for breeding purposes,” viz, was condition (3) satisfied? The trial court found that:
* * * At most, plaintiff evidently could sell only a one-half interest in tibe horse. Whether she had such title as permitted her alone to determine its use, does not appear.
The trial court concluded that the plaintiff had “no such title as permits her to determine disposition of the horse ‘Bob.’ She is not such an importer as paragraph 1606 (a) contemplates.”
I think the trial court, in determining whether condition (3) was satisfied, erred in basing its determination on “title” or “ownership” of the horse.
The trial court, in basing its decision on the fact that plaintiff had not shown 100 per cent ownership in the horse, relied on our decision in C.S. Emery & Co. v. United States, 20 CCPA 340 and cases subsequent. Both parties to this appeal cite the Emery decision as being in their favor. These opposite constructions of Emery should be resolved.
In C. S. Emery, a citizen of Canada sold certain pure-bred cattle to a second citizen of Canada living in New Hampshire, title to pass upon the delivery of the cattle to the Canadian citizen living in New Hampshire. The Canadian seller had in his employment one Wylie, a citizen *18of the United States. To effectuate the sale, a shipper’s invoice was prepared naming Wylie as the shipper from a town in Canada and also naming him as the consignee at a town in the United States. For pedigree purposes the animals were transferred on the Canadian Breeding Association records from the name of the Canadian owner to Wylie’s name. Wylie accompanied the shipment and engaged a licensed custom house broker to make entry and clearance in the United States for his account as the consignee. Duty was collected and protested.
Before the Customs Court the Government claimed and the court found:, two reasons for finding that the Government was correct and entitled to j udgment. The court stated:
* * * [1] In. the case at bar there was no intent, in good faith, to import the cattle into the United States for the importer’s own use or for sale by him to others for that purpose, as specified in paragraph 1506. * * * [2] The language in paragraph 1506, “whether intended to be used by the importer himself or for sale for such purposes”, implies that the importer of the animals shall be the actual owner thereof. * * *
On appeal this court affirmed the trial court stating:
Appellant contends that the object of the provision of paragraph 1506 is to improve the breed of domestic animials. That unquestionably is its principal object, but in furthering such object the privilege of free importation is limited to citizens of the United States. It clearly was never intended by Congress that mere dummies, such as Wylie was, might be used By an owner of cattle to secure the privilege of exemption of duty. The paragraph reads: “whether intended to be used by the importer himself or for sale for such purposes.” In the case at dar Wylie did not intend either to use the cattle or sell them for breeding purposes; at most, he toas the mere agent of the real owner, who was a citizen of Canada. To admit appellant’s contention would practically defeat the intention of Congress in granting exemption from duty under said paragraph 1506 to citizens of .the United States. We are of the opinion that Congress intended to encourage the improvement of the breed of domestic animals but in furthering such purpose intended to give to citizens of the United States an advantage over one who was not such citizen.
The real importer of the cattle in question was a Canadian citizen, and we hold that the use of his hired man as a dummy does not entitle him to free admission of the cattle in question. [Id. at 342-343] [Emphasis added.]
In Emery, neither conditions (2) or (3) were met. Neither agent Wylie or his principal in Canada were importing “specially for breeding purposes;” nor was the true importer, the principal in Canada, a United States citizen; nor was the true buyer, residing in New Hampshire, a United States citizen. Further, this court did not affirm the second reason set forth by the trial court, viz, that the importer must be a citizen and the actual owner of the cattle.3 The Emery decision *19permitted the Government to show that the alleged importer (Wylie) did not in fact import the cattle “specially for breeding purposes” not withstanding that the alleged importer was a United States citizen who “arranged” the importation and who had “title” to the cattle on the Canadian Breeding Association records.
While there exists conflicting evidence in the record as to whether Mrs. M. E. Person did in fact import the animal, there is no evidence contrary to Mrs. Person’s statement, in the Declaration on Free Entry of Animals, “that the animals [sic] covered by the annexed entry are imported by me specially for breeding purposes * * * ” and that the animal was delivered to Mrs. Person’s farm. I do not regard evidence of title as being relevant to the inquiry as to whether the animal is being imported specially for breeding purposes.
As stated in Emery, one object of the statute is to improve the breed of domestic animals. This objective would be lost to a citizen who wished to import foreign animals to use or sell for use in breeding to improve domestic stock but who did not wish to buy the animals. Also in Emery we held that the statute gave a privilege to a citizen and an advantage over one who was not a citizen. On the basis of the clear wording of the statute this privilege is not reserved only for complete owners of animals and denied to those citizens who are but part owners or non-owners.
I would therefore find the stipulation and the evidence of record show that conditions (1), (3) and (4) have been met. Since I find no determination by the trial court as to whether condition (2) was satisfied, I would remand the case for a determination of this issue.
Throughout the proceedings the parties have considered Mrs. LIZ WHITNEY PERSON the real party in interest and AIR EXPRESS INTERNATIONAL AGENCY, INC., acting for account of MRS. PERSON, as nominal plaintiff only.
Decisions subsequent to Emery are in no way inconsistent.