DISSENTING OPINION.
Barber, Judge:Among other reasons therefor, I dissent because—
(а) I think the tender of the Government before the board gave to the importer the right to take an order from that tribunal sustaining its protest as to any claim made therein upon which it might elect to stand, and, therefore, that there was nothing further to litigate there.
(б) The Government in this court tenders its consent that the importer may have judgment sustaining the protest upon any claim made therein, or may have the judgment of the board reversed and the action of the collector sustained, and there is, therefore, nothing to litigate here.
(c) The logical result of the court's decision is, I think, that the Government can not consent that judgment may go against it, either before the Board of General Appraisers or in this court, unless *498the importer is willing. If this be so, it must follow that importers have not a corresponding right unless the Government is willing.
To my mind, such results are not justifiable and can not be sustained in principle or by authority.
Either party, by conceding all the other claims, should have, and and I think has, a legal right to get out of court by suffering judgment in a civil case, like the one here.
The fact that the protest makes alternative claims is immaterial, as an importer should be able to select one on which he will take his judgment; otherwise he is using the courts to settle a question, real or fictitious, concerning which he is the only party who is interested in its determination..