AMERICAN ROTARY VALVE CO. v. MOOREHEAD, 226 F. 202

PER CURIAM. As we believed that nothing was involved in this appeal except questions of fact, we affirmed the decree of the District Comt without, filing a written opinion.

And as a re-examination leaves us under the same conviction respecting the facts, there would be no occasion los a written opinion on denying a rehearing, except for the fact chat counsel for appellant claim that we expressly or impliedly held, in so disposing of the case, “that under the new equity rules the decision of the trial court upon a disputed question of fact is binding upon the review court.” _ We had no intention of being so understood.

Under the new equity udes, as well as under the old ones, the reviewing court has the right, and owes to itself and to the parties the duty, of trying the questions of fací de novo. Under the old rules, the findings of the trial court were entitled to be treated as very persuasive, and such findings were not to be disturbed, unless it appeared quite clearly that the trial court Lad either misapprehended the evidence or had gone against the clear v„ eight thereof. W e conceive that the new rules have made no change in those respects.

Cases now are ordinarily to be heard by the trial judge m open colli't, while formerly they were ordinarily referred to a master. But under either set of rules, if the witnesses have been heard in open court, one element that rightly enters into the reviewing court’s consideration oí the evidence de novo is the opportunity of the trial judge to estimate the credibility of’ the witnesses by their appearance and demeanor on the stand. Espenschied v. Baum, 115 Fed. 793, 53 C. C. A. 368. The petition for rehearing is overruled.