
    No. 49415.
    Protest 77417-K of R. C. Williams & Co. (New York).
   Opinion by

Keefe, J.

At the trial counsel for plaintiff stated that the issue involved was shortage, it being claimed that two cases of the merchandise were not landed and that no allowance therefor was made in liquidation. The import manager of the plaintiff testified that all but two cases wore received, and a report of the customs inspector, admitted in evidence, showed that the cases in question were not landed. Counsel for the Government moved to dismiss the protest on the ground that the “evidence has not borne out the protest,” as nothing was stated concerning a shortage, that the evidence produced does not sustain the contention that duty was taken upon too great a weight, and that consequently the protest should either be dismissed as insufficient or overruled for lack of proof. The court was of the opinion that in the circumstances arising in the case the protest is sufficient as to the weight claim, inasmuch as the importer might have established that duty was taken upon the basis of too great a weight. However, counsel for plaintiff failed to introduce evidence to that end but attempted to establish that two cases were short-shipped. In respect to proof as to shortage, inasmuch as there is no claim made in the protest that the packages in question were not landed, the court said that evidence will not be considered. Therefore, the net landed weights reported by the Government weigher not having been controverted, judgment was entered in favor of the defendant.  