Kelly

This case has been heretofore twice considered by this court. As originally brought here, the record contained neither *74 a statement-of the evidence nor a statement of the case, within the requirements of Equity Rules 75(b) and 77 ( 226 U.S. 672 , 286 U.S. 570 , 28 U.S.C.A. following section 723). It contained a so-called abstract of what purported to be evidence, but this was not certified or otherwise authenticated by the District Court. Since the questions raised could not be decided without examining the evidence, we indulged the presumption of correctness and affirmed the District Court’s judgment. 83 F. (2d) 783.

Thereafter we denied a petition for rehearing in which it was suggested that the record be - returned to the District Court for settlement and authentication of ‘the so-called .abstract as a statement of evidence. 84 F.(2d) 541 . The Supreme Court granted certiorari, reversed our judgment, and directed us to return the record to the District Court for authentication. 57 S.Ct. 335 , 81 L.Ed. -. That has been done, and now, for the first time, we have before us the evidence on which the District Court based its judgment.

In the case of Carlisle Packing Company, a…