Reviser's Note.-Based on title 28, U. S. C., 1940 ed., §§ 342, 376, 377 (Mar. 3, 1911, ch. 231, §§ 234, 261, 262, 36 Stat. 1156, 1162).

Section consolidates sections 342, 376, and 377 of title 28, U. S. C., 1940 ed., with necessary changes in phraseology. Such section 342 provided:

"The Supreme Court shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a State, or an ambassador, or other public minister, or a consul, or vice consul is a party."

Such section 376 provided:

"Writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court; and by any district judge, in cases where they might be granted by the district court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States."

Such section 377 provided:

"The Supreme Court and the district courts shall have power to issue writs of scire facias. The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law."

The special provisions of section 342 of title 28, U. S. C., 1940 ed., with reference to writs of prohibition and mandamus, admiralty courts and other courts and officers of the United States were omitted as unnecessary in view of the revised section.

The revised section extends the power to issue writs in aid of jurisdiction, to all courts established by Act of Congress, thus making explicit the right to exercise powers implied from the creation of such courts.

The provisions of section 376 of title 28, U. S. C., 1940 ed., with respect to the powers of a justice or judge in issuing writs of ne exeat were changed and made the basis of subsection (b) of the revised section but the conditions and limitations on the writ of ne exeat were omitted as merely confirmatory of well-settled principles of law.

The provision in section 377 of title 28, U. S. C., 1940 ed., authorizing issuance of writs of scire facias, was omitted in view of rule 81 (b) of the Federal Rules of Civil Procedure abolishing such writ. The revised section is expressive of the construction recently placed upon such section by the Supreme Court in U. S. Alkali Export Assn. v. U. S., 65 S. Ct. 1120, 325 U. S. 196, 89 L. Ed. 1554, and De Beers Consol. Mines v. U. S., 65 S. Ct. 1130, 325 U. S. 212, 89 L. Ed. 1566.

AMENDMENTS

1949 Subsec. (a). Act May 24, 1949, inserted "and" between "jurisdictions” and “agreeable”.

WRIT OF ERROR

Act Jan. 31, 1928, ch. 14, § 2, 45 Stat. 54, as amended Apr. 26, 1928, ch. 440, 45 Stat. 466; June 25, 1948, ch. 646, § 23, 62 Stat. 990, provided that: "All Acts of Congress referring to writs of error shall be construed as amended to the extent necessary to substitute appeal for writ of error."

CROSS REFERENCES

Mandamus; statutory provisions giving district courts jurisdiction to grant relief in the nature of writs of mandamus include

Bridges over navigable waters, removal of, see sections 495 and 519 of Title 33, Navigation and Navigable Waters.

Federal Communications Act and orders of Commission, enforcement of, see sections 11, 401 (a), and 406 of Title 47, Telegraphs, Telephones, and Radiotelegraphs.

Federal Power Act, and orders thereunder, enforcement and prevention of violations, see sections 820 and 825m (b) of Title 16, Conservation.

Federal Trade Commission Act, and orders thereunder, enforcement of, see section 49 of Title 15, Commerce and Trade.

Interstate Commerce Act, enforcement of, see sections 19a (1), 20 (9) and 23 of Title 49, Transportation.

National Railroad Adjustment Board, enforcement of orders, see section 153 of Title 45, Railroads. Securities and Public Utilities Holding Companies Acts and orders of Securities and Exchange Commission, enforcement of, see sections 77t (c), 78u (f) and 79r (g) of Title 15.

Stockyards Act, adopting by reference section 49 of Title 15, see section 222 of Title 7, Agriculture.

Tariff Act and orders of Tariff Commission, enforcement of, see section 1333 (c) of Title 19, Customs Duties.

Union Pacific Railroad, operation of, see section 88 of Title 45.

Puerto Rico, power of supreme and district courts to grant mandamus, see section 872 of Title 48, Territories and Insular Possessions.

RULES OF THE SUPREME COURT OF THE UNITED STATES

Extraordinary writs—

Considerations governing issuance, see rule 30, Appendix to this title.

Procedure on applications, see rule 31.

FEDERAL RULES OF CIVIL PROCEDURE Remedies for seizure of person and property, including arrest, attachment, garnishment, replevin, and sequestration, see rule 64, Appendix to this title.

Writs of coram nobis, coram vobis, audita querela, bills of review, and bills in the nature of bills of review abolished, see rule 60.

Writs of mandamus and scire facias abolished in district courts, see rule 81 (b).

§ 1652. State laws as rules of decision.

The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. (June 25, 1948, ch. 646, 62 Stat. 944.) LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 725 (R. S. § 721).

"Civil actions" was substituted for "trials at common law" to clarify the meaning of the Rules of Decision Act in the light of the Federal Rules of Civil Procedure. Such Act has been held to apply to suits in equity. Changes were made in phraseology.

FEDERAL RULES OF CIVIL PROCEDURE

Evidence, see rules 43, 81, Appendix to this title. Modification of section by rules, see note by Advisory Committee under rules 43 and 81.

FEDERAL RULES OF CRIMINAL PROCEDURE Evidence, see rule 26, Title 18, Appendix, Crimes and Criminal Procedure.

§ 1653. Amendment of pleadings to show jurisdiction. Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts. (June 25, 1948, ch. 646, 62 Stat. 944.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 399 (Mar. 3, 1911, ch. 231, § 274c, as added Mar. 3, 1915, ch. 90, 38 Stat. 956).

Section was extended to permit amendment of all jurisdictional allegations instead of merely allegations of diversity of citizenship as provided by section 399 of title 28, U. S. C., 1940 ed.

Changes were made in phraseology.

FEDERAL RULES OF CIVIL PROCEDURE Amended and supplemental pleadings, see rules 12 and 15, Appendix to this title.

§ 1654. Appearance personally or by counsel.

In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein. (June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, § 91, 63 Stat. 103.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 394 (Mar. 3, 1911, ch. 231, § 272, 36 Stat. 1164). Words "as, by the rules of the said courts respectively, are permitted to manage and conduct causes therein," after "counsel," were omitted as surplusage. The revised section and section 2071 of this title effect no change in the procedure of the Tax Court before which certain accountants may be admitted as counsel for litigants under Rule 2 of the Tax Court.

Changes were made in phraseology.

36-500 0-65-vol. 7—12

AMENDMENTS 1949-Act May 24, 1949, added "as, by the rules causes therein.".

§ 1655. Lien enforcement; absent defendants.

In an action in a district court to enforce any lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to, real or personal property within the district, where any defendant cannot be served within the State, or does not voluntarily appear, the court may order the absent defendant to appear or plead by a day certain.

Such order shall be served on the absent defendant personally if practicable, wherever found, and also upon the person or persons in possession or charge of such property, if any. Where personal service is not practicable, the order shall be published as the court may direct, not less than once a week for six consecutive weeks.

If an absent defendant does not appear or plead within the time allowed, the court may proceed as if the absent defendant had been served with process within the State, but any adjudication shall, as regards the absent defendant without appearance, affect only the property which is the subject of the action. When a part of the property is within another district, but within the same state. such action may be brought in either district.

Any defendant not so personally notified may, at any time within one year after final judgment, enter his appearance, and thereupon the court shall set aside the judgment and permit such defendant to plead on payment of such costs as the court deems just. (June 25, 1948, ch. 646, 62 Stat. 944.) LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 118 (Mar. 3, 1911, ch. 231, § 57, 36 Stat. 1102). Word "action" was substituted for "suit," in view of Rule 2 of the Federal Rules of Civil Procedure.

In view of Rule 4 (f) of the Federal Rules of Civil Procedure permitting service of process anywhere within the territorial limits of the State, the word "State" was substituted for "district" in the first and third paragraphs. Changes were made in phraseology.

FEDERAL RULES OF CIVIL PROCEDURE

Process and relief from judgment or order, see rules 4 and 60, Appendix to this title.

§ 1656. Creation of new district or division or transfer of territory; lien enforcement.

The creation of a new district or division or the transfer of any territory to another district or division shall not affect or divest any lien theretofore acquired in a district court upon property within such district, division or territory.

To enforce such lien, the clerk of the court in which the same is acquired, upon the request and at the cost of the party desiring the same, shall make a certified copy of the record thereof, which, when filed in the proper court of the district or division in which such property is situated after such creation or transfer shall be evidence in all courts and places equally with the original thereof; and, thereafter like proceedings shall be had thereon, and with the same effect, as though the case or proceeding had been originally instituted in such court. (June 25, 1948, ch. 646, 62 Stat. 944.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 122 (Mar. 3, 1911, ch. 231, § 60, 36 Stat. 1103).

A provision as to creation of a new district or division or transfer of territory before March 3, 1911, was omitted as obsolete.

Words descriptive of the lien were omitted as unnecessary.

Changes were made in phraseology.

FEDERAL RULES OF CIVIL PROCEDURE

Effect of rule 69 on this section, see note by Advisory Committee under rule 69, Appendix to this title.

Sec.

Chapter 113.-PROCESS

1691. Seal and teste of process.

1692. Process and orders affecting property in different districts.

1693. Place of arrest in civil action.

1694. Patent infringement action.

1695. Stockholder's derivative action.

1696. Service in foreign and international litigation. AMENDMENTS

1964-Pub. L. 88-619, § 4(b), Oct. 3, 1964, 78 Stat. 996, added item 1696.

FEDERAL RULES OF CIVIL PROCEDURE Process, see Rule 4, Appendix to this title.

CROSS REFERENCES

Virgin Islands, process of district court, see section 1405z of Title 48, Territories and Insular Possessions.

§ 1691. Seal and teste of process.

All writs and process issuing from a court of the United States shall be under the seal of the court and signed by the clerk thereof. (June 25, 1948, ch. 646, 62 Stat. 945.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 721 (R. S. § 911; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167).

Provisions as to teste of process issuing from the district courts were omitted as superseded by Rule 4 (b) of the Federal Rules of Civil Procedure. Provision for teste of the Chief Justice of writs and process was omitted as unnecessary.

A provision requiring the United States to bear the expense of providing seals was omitted as unnecessary and obsolete.

Changes were made in phraseology.

be executed in any such district as if the property lay wholly within one district, but orders affecting the property shall be entered of record in each of such districts. (June 25, 1948, ch. 646, 62 Stat. 945.) LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 117 (Mar. 3, 1911, ch. 231, § 56, 36 Stat. 1102).

Provisions of section 117 of title 28, U. S. C., 1940 ed., as to jurisdiction and control of a receiver of property in several districts are the basis of section 754 of this title.

For explanation of revision of section 117 of title 28, U. S. C., 1940 ed., and its extension to include property, not only in the same judicial circuit, but in any judicial circuit. (See reviser's note under section 754 of this

title.)

Changes were made in phraseology.

CROSS REFERENCES

Receivers of property in different districts, see section 754 of this title.

§ 1693. Place of arrest in civil action.

Except as otherwise provided by Act of Congress, no person shall be arrested in one district for trial in another in any civil action in a district court. (June 25, 1948, ch. 646, 62 Stat. 945.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 112 (Mar. 3, 1911, ch. 231, § 51, 36 Stat. 1101; Sept. 19, 1922, ch. 345, 42 Stat. 849; Mar. 4, 1925, ch. 526, § 1, 43 Stat. 1264; Apr. 16, 1936, ch. 230, 49 Stat. 1213).

Venue provisions of section 112 of title 28, U. S. C., 1940 ed., appear in sections 1391 and 1401 of this title. Other provisions are incorporated in section 1695 of this title. The exception at the beginning of the section was substituted for "Except as provided in sections 113-117 of this title."

Changes were made in phraseology.

CROSS REFERENCES

Venue generally, see section 1391 of this title. Waiver of venue, see section 1406 of this title.

§ 1694. Patent infringement action.

In a patent infringement action commenced in a district where the defendant is not a resident but has a regular and established place of business, service of process, summons or subpoena upon such defendant may be made upon his agent or agents conducting such business. (June 25, 1948, ch. 646, 62 Stat. 945.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 109 (Mar. 3, 1911, ch. 231, § 48, 36 Stat. 1100). Venue provisions of section 109 of title 28, U. S. C., 1940 ed., appear in section 1400 of this title. Changes were made in phraseology.

CROSS REFERENCES

Venue in patent infringement action, see section 1400 of this title.

§ 1695. Stockholder's derivative action.

Process in a stockholder's action in behalf of his corporation may be served upon such corporation in any district where it is organized or licensed to do business or is doing business. (June 25, 1948, ch. 646, 62 Stat. 945.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 112 (Mar. 3, 1911, ch. 231, § 51, 36 Stat. 1101; Sept. 19, 1922, ch. 345, 42 Stat. 849; Mar. 4, 1925, ch. 526, § 1, 43 Stat. 1264; Apr. 16, 1936, ch. 230, 49 Stat. 1213).

The phrase "is organized or licensed to do business or is doing business" was substituted for the words "re

sides or is found," as more specific and to conform to section 1391 of this title.

Venue provisions of section 112 of title 28, U. S. C., 1940 Other ed., appear in section 1391 and 1401 of this title. provisions are incorporated in section 1693 of this title. Changes were made in phraseology.

CROSS REFERENCES

Venue in stockholder's derivative action, see section 1401 of this title.

§ 1696. Service in foreign and international litigation. (a) The district court of the district in which a person resides or is found may order service upon him of any document issued in connection with a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon application of any interested person and shall direct the manner of service. Service pursuant to this subsection does not, of itself, require the recognition or enforcement in the United States of a judgment, decree, or order rendered by a foreign or international tribunal.

(b) This section does not preclude service of such a document without an order of court. (Added Pub. L. 88-619, § 4(a), Oct. 3, 1964, 78 Stat. 995.)

1964-Pub. L. 88-619, §§ 5(b), 6(b), 7(b), Oct. 3, 1964, 78 Stat. 996, substituted "official documents" for "documents generally; copies" in item 1741, inserted "[Repealed]." in item 1742, and substituted "documents" for "specifications and drawings" in item 1745.

1951-Act Aug. 28, 1951, ch. 351, § 2, 65 Stat. 206, inserted"; photographic copies" in item 1732.

1949-Act May 24, 1949, ch. 139, § 92(a), 63 Stat. 103, struck out former item "1745. Printed copies of patent specifications and drawings" and renumbered former item "1746" as "1745".

FEDERAL RULES OF CIVIL PROCEDURE

Civil cases

Proof of official record, see rule 44, Appendix to this title.

Subpoena for production of documentary evidence, see rule 45 (b), following section 2072.

FEDERAL RULES OF CRIMINAL PROCEDURE

Criminal cases

Proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure.

Subpoena for production of documentary evidence, see rule 17 (c).

§ 1731. Handwriting.

The admitted or proved handwriting of any person shall be admissible, for purposes of comparison,

to determine genuineness of other handwriting attributed to such person. (June 25, 1948, ch. 646, 62 Stat. 945.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., § 638 (Feb. 26, 1913, ch. 79, 37 Stat. 683).

Words "as a basis for comparison by witnesses, or by the jury, court, or officer conducting such proceeding", were omitted as superfluous.

Changes were made in phraseology.

FEDERAL RULES OF CIVIL PROCEDURE

Evidence, civil actions, see rule 43, Appendix to this title. FEDERAL RULES OF CRIMINAL PROCEDURE Criminal proceedings, see rule 26, Title 18, Appendix, Crimes and Criminal Procedure.

§ 1732. Record made in regular course of business; photographic copies.

(a) In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.

All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.

The term "business," as used in this section, includes business, profession, occupation, and calling of every kind.

(b) If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original. This subsection shall not be construed to exclude from evidence any document or copy thereof which is otherwise admissible under the rules of evidence. (June 25, 1948, ch. 646, 62 Stat. 945; Aug. 28, 1951, ch. 351, §§ 1, 3, 65 Stat. 206; Aug. 30, 1961, Pub. L. 87-183, 75 Stat. 413.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed.. 695 (June 20, 1936, ch. 640, § 1, 49 Stat. 1561). Changes in phraseology were made.

AMENDMENTS

1961-Subsec. (b). Pub. L. 87-183 deleted "unless held in a custodial or fiduciary capacity or" which followed "may be destroyed in the regular course of business." 1951-Act Aug. 29, 1951, § 3, inserted reference to photographic copies in the catchline.

Subsec. (a). Act Aug. 28, 1951, § 1, designated the former entire section as subsec. (a).

Subsec. (b). Act Aug. 28, 1951, § 1, added subsec. (b).

FEDERAL RULES OF CIVIL PROCEDURE

Proof of official records, see rule 44, Appendix to this title.

Effect of rule 44 on former section 695 of this title, see note by Advisory Committee under rule 44.

FEDERAL RULES OF CRIMINAL PROCEDURE

Proof of official records, see rule 27 and note of the Advisory Committee under rule 27, Title 18, Appendix, Crimes and Criminal Procedure.

§ 1733. Government records and papers; copies.

(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept.

(b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof. (June 25, 1948, ch. 646, 62 Stat. 946.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. 8. C., 1940 ed., § § 661-667, 671 (R. S. §§ 882-886, 889; July 31, 1894, ch. 174, §§ 17, 22, 28 Stat. 210; Mar. 2, 1895, ch. 177, § 10, 28 Stat. 809; June 10, 1921, ch. 18, §§ 301, 302, 304, 310, 42 Stat. 23-25; May 10, 1934, ch. 277, § 512, 48 Stat. 758; June 19, 1934, ch. 653, § 6 (a), 48 Stat. 1109).

The consolidation of sections 661-667 and 671 of title 28, U. S. C., 1940 ed., permitted omission of obsolete, unnecessary and repetitive provisions in such sections. For example, the provision in section 665 of title 28, U. S. C., 1940 ed., authorizing the court to require production of documents on a plea of non est factum, was omitted. Such plea is obsolete in Federal practice.

Numerous provisions with respect to authentication were omitted as covered by Rule 44 of the Federal Rules of Civil Procedure.

Likewise the provision that official seals shall be judicially noticed was omitted as unnecessary. Seals of Federal agencies are judicially noticed by State and Federal courts without statutory mandate. Gardner v. Barney, 1867, 6 Wall. 499, 73 U. S. 499, 18 L. Ed. 890, 31 C. J. S. 599 n. 27-30 and 23 C. J. S. 99 n. 41. The same principle unquestionably will apply to seals of Government corporations.

Words "of any corporation all the stock of which is beneficially owned by the United States, either directly or indirectly", in section 661 of title 28, U. S. C., 1940 ed., were omitted as covered by "or agency". The revised section was broadened to apply to "any department or agency". (See reviser's note under section 1345 of this title.)

Changes were made in phraseology.

CROSS REFERENCES

Authenticated and certified copy of Government record by Administrator of General Services admissible in evidence, see section 399 (b) of Title 44, Public Printing and Documents.

Authentication

Copies of documents, etc., in the office of the Commissioner of Indian Affairs is made by section 6 of Title 25, Indians.

Original papers on file in the Bureau of Land Management are provided for by section 13, of Title 43, Public Lands.

Records by Secretary of the Interior, see section 488 of Title 5, Executive Departments and Government Officers and Employees.

Transcripts and copies by Postmaster General, see section 362 of Title 5. Certified copies of

Records or other documents of General Accounting Office admissible in evidence, see section 46 of Title 31, Money and Finance.

Schedules and tariffs of rates, etc., copies as evidence, see section 16 of Title 49, Transportation. Judicial notice of seals

Departments of Commerce and Labor, see sections 591 and 611 of Title 5.

Department of the Air Force, see section 8011 of Title 10, Armed Forces.

Provisions relating to the requisites of the certificates of national banks, and the acknowledgment and filing thereof, are made by sections 22 and 23 of Title 12, Banks and Banking.

Secretary of the Interior is authorized to furnish transcripts of records in district land offices for individuals, and such transcripts, when duly certified, are made admissible as evidence by section 83 of Title 43.

Verification of official documents by Secretary of Agriculture, see section 513 of Title 5.

FEDERAL RULES OF CIVIL PROCEDURE Proof of official record, see rule 44, Appendix to this title.

Subpoena for production of documentary evidence, see rule 45 (b).

FEDERAL RULES OF CRIMINAL PROCEDURE Proof of official record, see rule 27, Title 18, Appendix, Crimes and Criminal Procedure. Subpoena for production of documentary evidence, see rule 17 (c).

§ 1734. Court record lost or destroyed, generally.

(a) A lost or destroyed record of any proceeding in any court of the United States may be supplied on application of any interested party not at fault, by substituting a copy certified by the clerk of any court in which an authentic copy is lodged.

(b) Where a certified copy is not available, any interested person not at fault may file in such court a verified application for an order establishing the lost or destroyed record.

Every other interested person shall be served personally with a copy of the application and with notice of hearing on a day stated, not less than sixty days after service. Service may be made on any nonresident of the district anywhere within the jurisdiction of the United States or in any foreign country.

Proof of service in a foreign country shall be certified by a minister or consul of the United States in such country, under his official seal.

If, after the hearing, the court is satisfied that the statements contained in the application are true, it shall enter an order reciting the substance and effect of the lost or destroyed record. Such order, subject to intervening rights of third persons, shall have the same effect as the original record. (June 25, 1948, ch. 646, 62 Stat. 946.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 28, U. S. C., 1940 ed., §§ 681, 682, 683, and 684 (R. S. §§ 899, 900, 901, 902; Jan. 31, 1879, ch. 39, § 1, 20 Stat. 277).

Sections 681, 682 and 684 of title 28, U. S. C., 1940 ed., contained repetitious language which was eliminated by the consolidation.

Section 683 of title 28, U. S. C., 1940 ed., applied only to cases removed to the Supreme Court, and was revised so