delivered the opinion of the court, reversing the decision of the cir-. cult court and remanding the ease for a new trial.
The assessment of the commissioner of internal revenue was only prima facie evidence of the amount due as taxes upon the spirits distilled between the dates mentioned. It established a prima facie case of liability, and if not-impeached it was sufficient to justify a recovery; but every material fact, upon which his liability was asserted was open to contestation. The distiller and his sureties were at liberty to show that no spirits, or a less quantity than *637that stated by the commissioner, were distilled within the period mentioned, and this entirely, or in part; overthrows the assessment. They were at liberty to show a payment of the tax in whole or in part, and thus discharge or reduce the liability. To the extent, however, in which the assessment was impaired, it was evidence of the amount due. It was error, therefore, to instruct the jury that the assessment was to be taken and considered in its entirety, and that the government was entitled to recover the exact amount assessed or not any sum. A decree in the equity suit is not a bar to the prosecution of the action against the principal and sureties on a distiller’s bond, in the absence of proof that the assessment which it adjudged invalid covered the spirits upon which the assessment in this suit was made.
S. F. Phillips, Solicitor Gen., for plaintiffs in error.J. P. C. Cottriil, L. Abraham, and C. E. Mayer, for defendants in error.