(concurring).
I concur with the majority in affirming the judgment of the District Court. I disagree with my colleagues, however, in their characterization of the Government’s position with respect to the defense of “payment.” I do not under*816stand the Government to argue that the “withholding and applying” procedure which it contends is authorized by 31 U.S.C.A. § 71 “makes it unnecessary for the Government to prove its claim on the merits * * I understand the Government’s position to be that the merits of its claim may be adjudicated by a court of competent jurisdiction in an action brought by Grace Line to recover for the alleged wrongful withholding and that the Government does not intend to “by-pass the process of adjudication.” Consistent with the position I understand the Government to have taken here, I note that in the case of Isbrandtsen Co., Inc., v. United States, 2 Cir., 255 F.2d 817, the United States does not deny that the validity of its claim against Isbrandtsen is raised by Isbrandtsen’s libel to recover amounts the Government had withheld and applied upon the claim.