DISSENTING OPINION
Lenroot, Judge:I feel impelled to dissent from the conclusion reached by the majority of the court herein, for in my opinion the amendments to the protests here involved state a new cause of action which was barred by the statute of limitations.
As I construe the opinion of the majority, it holds that the amendments do state a new cause of action in each protest, and in courts of general jurisdiction amendments to a bill or complaint do not relate back to the time of original filing so as to avoid the bar of the statute of limitations. It is also held in the majority opinion that such was *55the rule in customs law prior to the enactment of the Tariff Act of 1922, which for the first time provided for the amendment of protests, and this provision in a modified form was continued in section 518 of the Tariff Act of 1930. It is solely by virtue of the last-named provision that the majority affirm the judgment appealed from.
In my judgment Congress never intended to change so radically the general rule respecting amendments as to permit, through amendment of protests, adding new causes of action barred by the statute of limitations.
The majority opinion states that the power to amend protests could not have been for correction of defects in form only, because under the statute of jeofails the United States Customs Court already had authority to correct “any defect or want of form” in pleadings and processes issued by it, and in support of this statement the case of United States v. Brachet & Co. et al., 13 Ct. Cust. Appls. 432, T. D. 41344, is cited. I would observe that this decision was rendered on January 18, 1926, and the case arose under the Tariff Act of 1922. It was by virtue •of the provisions of the Tariff Act of 1922 that this court, in the case of United States v. Macy & Co., 13 Ct. Cust. Appls. 245, T. D. 41199, for the first time judicially declared as follows:
* * * With the enlarged powers which have been conferred upon the board and its members by Congress, we can not doubt that the board is a court of the United States of limited and special jurisdiction. Its powers and functions are judicial, its process, forms, and practice are judicial, and its decisions and judgments have the force and conclusiveness of those of other courts.
It will be remembered that the power to amend protests was first provided for in section 514 of the Tariff Act of 1922. Under previous tariff acts it had never been held that the statute of jeofails was applicable to the Board of General Appraisers. Therefore Congress, in providing for amendments to protests in the Tariff Act of 1922, might well have considered that the statute of jeofails was not applicable, and therefore the Board of General Appraisers was given specific power to allow amendments in such cases as are provided for by the statute of jeofails.
Furthermore, I cannot agree with the majority opinion that the power of amendment provided for by section 518 of the Tariff Act of 1930 could have no practical effect unless it includes adding new causes of action which, at the time of amendment, were barred by the statute of limitations under the general rule.
The cause of action set out in the protests herein was for the refund •of money to the importer arising out of alleged improper classification of merchandise. The merchandise was not the cause of action, but its classification by the collector. In order for the importer to prevail it was necessary for him, first, to establish that the classification made by the collector was wrong, and second, that the classification *56claimed in Ms protest was right. The cause of action was the claimea improper classification by the collector. In my opinion an amendment to a protest setting up an alternative claim to classification under a paragraph not claimed in the original protest would not be a new cause of action, but would merely affect the amount of recovery-claimed under the original cause of action, to wit, the classification of the merchandise by the collector.
It is also true that it is possible for amendments to be made without, contravening the general rule of law respecting the bar of the statute of limitations. It would be possible for an importer to protest a. liquidation by the collector the day after it was made, for the collector to deny the claims made in the protest and immediately transmit the papers to the Customs Court, leaving 58 days in wMch amendments might be allowed by the Customs Court without contravening' the genera] rule of law.
Under the decision of the majority, however, an importer may file-a protest against the classification of merchandise, and, after the statute of limitations had run, apply to the Customs Court for an amendment to the protest abandoning Ms original cause of action (as was done in the case at bar) and setting up a new cause of action for the refund of money collected from Mm growing out of the failure to-mark the merchandise, or a new cause of action claiming that the merchandise was American goods returned, or a new cause of action claiming that the appraisement of the merchandise was void, as well as the new cause of action here involved, viz., the conversion of Mexican dollars into United States dollars. These are some of the-new causes of action that may be set up under the majority opmion.
WMle the majority opiMon states that nothing therein should be construed to affect the provisions of section 514 of the Tariff Act of' 1930 respecting protests, in my judgment the conclusion reached is contrary to the entire spirit and purpose of that section.
For the reasons stated, I think the judgment appealed from should be reversed.