it, which is frozen. Furthermore the agreed | 3. BANKRUPTCY 228 REFEREE'S FUNCfacts do not state whether the cars, which TIONS REVIEWABLE BY DISTRICT Court. by their number prevented unloading within the 48 hours, came in one consignment or in many. The judicial functions of a referee in bank- JECT TO REFEREE'S JURISDICTION NOT LIMIT- Excessive receipts of cars is a frequent cause of detention beyond the free time even where shipments are not frozen. From the resulting hardship either the bunching rule or the average agreement ordinarily furnish Under General Order in Bankruptcy No. 12 relief. If the company had not elected to (172 U. S. 657, 18 Sup. Ct. vii), providing that enter into the average agreement, the bunch- after an order of reference all proceedings, ing rule might have afforded relief under with certain exceptions, shall be had before the circumstances which attended the de- the referee, the question whether a suit by liveries here in question. Since any 1 of the within the referee's jurisdiction is not govthe trustee in bankruptcy is a "proceeding" 227 cars on which demurrage was assessed erned by the distinction between "proceedings might have been unloaded within the 48 in equity arising in bankruptcy proceedings," in bankruptcy" and "controversy at law and hours free time, the undue detention was not as those terms are employed in Bankruptcy the necessary result of the ore therein being Act, §§ 23, 24a, 24b, and 25a (Comp. St. §§ frozen, but was the result of there being an 9607-9609), relative to modes of review. accumulation of cars so great as to exceed [Ed. Note.-For other definitions, see Words the unloading capacity. Compare River- and Phrases, First and Second Series, Proside Mills v. Charleston and Western Caro-ceeding.] *325 VEYANCE MUST BE SET ASIDE BY PLENARY A fraudulent conveyance by a bankrupt more than four months prior to the institution of proceedings in bankruptcy can only be set aside in a plenary suit where the property is in the actual possession of the transferee under an adverse claim of ownership, and not in the custody of the court. lina Ry. Co., 20 Interst. Com. Com'n R. 153, 5. BANKRUPTCY ~287(1)—FRAUDULENT CON155; Central Penn. Lumber Co. v. Director General, 53 Interst. Com. Com'n R. 523. It does not seem probable that those who framed and adopted the frozen shipment rule and the Interstate Commerce Commission, which approved it, intended therein to depart from the established policy of treating the single car as the unit in applying demurrage charges as well as in applying carload freight rates. Such was the conclusion reached in the informal ruling of the commission to which counsel called attention. The judgment of the Supreme Court of Pennsylvania is Reversed. (253 U. S. 268) WEIDHORN v. LEVY. 6. BANKRUPTCY 224 REFEREE WITHOUT JURISDICTION OF PLENARY SUIT TO SET ASIDE Under Bankruptcy Act, § 23b, as amended by Act June 25, 1910 (Comp. St. § 9607), conferring jurisdiction, without the consent of the proposed defendant, on courts of bankruptcy, over suits under section 70e (Comp. St. § 9654) for the recovery of property fraudulently con (Argued Jan. 28 and 29, 1920. Decided June veyed, the referee has no jurisdiction of such 1, 1920.) 1. BANKRUPTCY 440-DECREE SUSTAINING OBJECTION TO REFEREE'S JURISDICTION REVIEWABLE BY PETITION TO REVISE. A decree of the District Court, sustaining an objection to the jurisdiction of a referee in bankruptcy in a plenary suit to set aside a fraudulent conveyance and dismissing the bill, was reviewable by the Circuit Court of Appeals, by a petition to revise under Bankruptcy Act, § 24b (Comp. St. § 9608), as the decision turned upon a mere question of law. 2. BANKRUPTCY 224-REFEREE NOT A SEPARATE COURT BUT OFFICER OF BANKRUPTCY COURT. The referee in bankruptcy is not a separate court, nor endowed with any independent judicial authority, but is merely an officer of the court of bankruptcy, with no power, except as conferred by the order of reference. a suit by virtue of a general reference, where the property is not in the custody or control of the court of bankruptcy. 7. BANKRUPTCY 224-SCOPE OF REFEREE'S JURISDICTION STATED. The jurisdiction and authority of a referee in bankruptcy under a general reference is limited to ordinary administrative proceedings in bankruptcy and such controversial matters as arise therein and are in effect a part thereof. On Writ of Certiorari to the United States Circuit Court of Appeals for the First Circuit. Suit instituted in the bankruptcy court by Benjamin A. Levy, trustee in bankruptcy of J. Herbert Weidhorn, against Leo Weidhorn and another. A decree of the District Court dismissing the bill (243 Fed. 756) was reversed by the Circuit Court of Appeals (253 Fed. 28, 165 C. C. A. 48), and the defendant named brings certiorari. Reversed, and decree of the District Court affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) Messrs. William M. Blatt and Walter Hart-referee had authority to hear and determine stone, both of Boston, Mass., and L. P. Loving, the controversy-in effect a question of proof Washington, D. C., for petitioner. cedure-it properly was reviewable by petiMr. Lee M. Friedman, of Boston, Mass., for tion to revise under section 24b. Louisville respondent. Trust Co. v. Comingor, 184 U. S. 18, 26, 22 Mr. Justice PITNEY delivered the opinion 195 U. S. 171, 172, 25 Sup. Ct. 15, 49 L. Ed. of the Court. *269 Upon his voluntary petition, filed in February, 1916, J. Herbert Weidhorn was adjudged a bankrupt, and the *District Court referred the case to a referee under General Order XII (1), 172 U. S. 657, 18 Sup. Ct. vi. Thereafter the trustee in bankruptcy addressed to and filed with the referee a bill in equity against the bankrupt's brother, Leo Weidhorn (the present petitioner), and the Boston Storage Warehouse Company, alleging that certain chattel mortgages, or bills of sale in the nature of mortgages, made by the bankrupt to 144; First Nat. Bank v. Title & Trust Co., 198 U. S. 280, 288, 291, 25 Sup. Ct. 693, 49 L. Ed. 1051; Matter of Loving, 224 U. S. 183, 188, 32 Sup. Ct. 446, 56 L. Ed. 725; Gibbons v. Goldsmith, 222 Fed. 826, 828, 138 C. C. A. 252. Did the referee exceed the authority and ruptcy Act and the general order of reference? jurisdiction conferred upon him by the Bank The following provisions of the act are pertinent: By section 1 (7), Comp. St. § 9585: "Court' shall mean the court of bankruptcy in which the proceedings are pending, and may include the referee." By section 18g (section 9602): "If the judge is absent from the district, or the division of the district in which the petition is filed at the time of the filing, the clerk shall forthwith refer the case to the referee." Leo more than four months before the filing of the petition in bankruptcy, and under which, prior to the filing of the petition, possession of the chattels had passed to the mortgagee and the Storage Warehouse Company, were invalid because made in fraud of creditors, and seeking to set them aside under the statute of Section 22 (section 9606) provides that after Elizabeth and the Bankruptcy Act, § 70e a person has been adjudged a bankrupt the (Comp. St. § 9654), and recover the chattels or the proceeds thereof for the bankrupt estate. judge may make a reference to the referee Defendant Leo Weidhorn promptly objected either generally or specially with limited auto the jurisdiction of the referee, and after-thority to act or to consider and report, and wards answered to the merits. The referee "may, at any time, for the convenience of parties or for cause, transfer a case from one overruled the jurisdictional objection, proceeded to hear the merits, and entered a final referee to another." By section 36 (section 9620): decree in favor of the trustee. On review the District Court, considering the jurisdictional question only, vacated the decree and dismissed the bill upon the ground that the referee exceeded his powers under the order of reference. In re Weidhorn, 243 Fed. 756. The trustee petitioned the Circuit Court of Appeals to revise the decree under section 24b; and that court, deeming that the District Court had erred in holding that the referee acted without jurisdiction, reversed its decree dismissing the bill and remanded the cause for further proceedings, including a review of the merits. 253 Fed. 28, 165 C. C. A. 48. A writ of certiorari brings the case here. 248 U. S. 555, 39 Sup. Ct. 11, 63 L. Ed. 419. [1] It is assigned for error that the Circuit Court of Appeals ought not to have entertained the petition to revise under section 24b (Comp. St. § 9608); the contention being that since the decree complained of was made in a plenary suit the exclusive remedy was by appeal under section 24a. Had the District Court sustained the jurisdiction and passed *270 "Referees shall take the same oath of office as that prescribed for judges of United States courts." And by section 38a (section 9622): subject always to a review by the judge, with- "Referees respectively are hereby invested, *271 [2, 3] These provisions make it clear that the referee is not in any sense a separate court, nor endowed with any independent judicial authority, and is merely an officer of the court of bankruptcy, having no power except as conferred by the order of reference-reading this, of course, in the light of upon the merits the *point would be well tak-the act; and that his judicial functions, howen, as the court thereby would have determin-ever important, are subject always to the ed a "controversy arising in bankruptcy pro-review of the bankruptcy court. ceedings." Hewit v. Berlin Machine Works, [4] In the general orders established by this 194 U. S. 296, 300, 24 Sup. Ct. 690, 691 (48 L. court pursuant to the act, under XII (1) proEd. 986). But since the decision turned upon vision is made for an order referring a case a mere question of law as to whether the to a referee: the recovery of property fraudulently transferred by the bankrupt could be brought in a court of bankruptcy without the consent of defendant was a question left undetermined in Harris v. First National Bank, 216 U. S. 382, 385, 30 Sup. Ct. 296, 54 L. Ed. 528, but answered in the negative in Wood v. A. Wilbert's Sons Shingle & Lumber Co., 226 U. S. 384, 389, 33 Sup. Ct. 125, 57 L. Ed. 264. By Act June 25, 1910, c. 412, § 7, 36 Stat. 838, 840, section 23b was further amended so as to confer jurisdiction upon the courts of bankruptcy without consent of the proposed defendant in suits for the recovery of property under section 70e. The present suit, being of this nature, might have been brought in the *273 The question is whether the present suit brought by the trustee in bankruptcy against petitioner was a "proceeding" within the meaning of this provision. We cannot concur in the view of the District Court that this question is governed by the distinction between "proceedings in bankruptcy" and "controversies at law and in equity arising in bankruptcy proceedings," as these terms are employed in sections 23, 24a, 24b, and 25a (Comp. St. 88 9607-9609); there may be controversies arising in the course of bankruptcy proceedings that are so far connected District Court, or *it might have been brought with those proceedings as to be in effect a in a state court having concurrent jurisdiction part of them and capable of summary dis-under section 70e as amended. position by the referee under the general We find nothing in the provisions of the order of reference, although because of their Bankruptcy Act that makes it necessary or nature or because involving a distinct and reasonable to extend the authority and jurisseparable issue they may be reviewable, under diction of the referee beyond the ordinary the sections cited, by appeal rather than by administrative proceedings in bankruptcy and petition to revise. Hewit v. Berlin Machine such controversial matters as arise thereWorks, 194 U. S. 296, 300, 24 Sup. Ct. 690, in and are in effect a part thereof, or to 48 L. Ed. 986; Knapp v. Milwaukee Trust Co., extend the authority of the referee under the 216 U. S. 545, 553, 30 Sup. Ct. 412, 54 L. Ed. general reference so as to include jurisdiction over an independent and plenary suit such as 610. the one under consideration. The provisions of the act, as well as the title of his office, indicate that the referee is to exercise powers versy raised by an *adverse claimant setting not equal to or co-ordinate with those of the up a title to or lien upon it might be deter- court or judge, but subordinate thereto, and mined on summary proceedings in the bank- he becomes "the court" only by virtue of ruptcy court, and would fall within the juris- the order of reference. In the General Ordiction of the referee. White v. Schloerb, 178 ders the word "proceedings" occurs frequentU. S. 542, 546, 20 Sup. Ct. 1007, 44 L. Ed. 1183;|ly, but never in a sense to include a plenary Mueller v. Nugent, 184 U. S. 1, 13, 22 Sup. Ct. suit. On the other hand, "proceedings in 269, 46 L. Ed. 405. Thus, if the property were in the custody of the bankruptcy court or its officer, any contro *272 [5] But in the present instance the controversy related to property not in possession or control of the court or of the bankrupt or any one representing him at the time of petition filed, and not in the court's custody at the time of the controversy, but in the actual possession of the bankrupt's brother under an adverse claim of ownership based upon conveyances made more than four months before the institution of the proceedings in bankruptcy. In order to set aside these conveyances and subject the property to the administration of the court of bankruptcy a plenary suit was necessary (Babbitt v. Dutcher, 216 U. S. 102, 113, 30 Sup. Ct. 372, 54 L. Ed. 402, 17 Ann. Cas. 969), and such was the nature of the one that was instituted. equity" and "proceedings at law" are specially dealt with in General Order XXXVII, 18 Sup. Ct. x. The practice is not uniform; we have found no decision by a Circuit Court of Appeals upon the point; and the decisions of the district courts are conflicting. A referee's opinion in In re Murphy (1900) 3 Am. Bankr. Rep. 499, 505, upholds his jurisdiction over a plenary proceeding by the trustee to set aside a preferential transfer of property to a creditor. In In re Shults & Mark (referee's opinion) 11 Am. Bankr. Rep. 690, a special form of reference having been adopted by the District Court, it was held that jurisdiction was conferred upon the referee over proceedings under section 60b to recover property preferentially transferred and under section 67e to recover property fraudulently transferred. In In re Steuer (D. C. Mass.) 104 Fed. 976, 980, a plenary suit to avoid a preference was heard before the referee without objection, and upon petition to review his action the District Court, with some hesitation, directed that a decree issue "as if made originally by [6, 7] Under the Bankruptcy Act of 1898 as originally passed, an independent suit of this character could not be brought in the District Court in bankruptcy "unless by consent of the proposed defendant." Act July 1, 1898, c. 541, § 23b, 30 Stat. 544, 552; Bardes v. Hawarden Bank, 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175. Whether under Act Feb. 5, 1903, c. 487, 32 Stat. 797, 798, 800, the judge, and *not simply as an affirmance of amending sections 23b and 70e, a suit for the decree of the referee." In In re Scherber *274 (40 Sup.Ct.) BAIL ON SUBSEQUENT PROCESS DURING HEAR- (D. C. Mass.) 131 Fed. 121, 124, it was found [3. HABEAS CORPUS 10-PETITIONER GIVING unnecessary to determine whether the referee could proceed over objection to take jurisdiction of a plenary suit to recover a preference. Views adverse to the jurisdiction of the referee in an independent proceeding to avoid a transfer were expressed in In re Walsh Brothers (D. C. Iowa) 163 Fed. 352; In re Carlile (D. C. N. C.) 199 Fed. 612, 615, 616; In re Ballou (D. C. Ky.) 215 Fed. 810, 813, 814; and In re Overholzer (referee's opinion) 23 Am. Bankr. Rep. 10. The point appears to have been overlooked in Studley v. Boylston Nat. Bank, 200 Fed. 249, 118 C. C. A. 435; Id., 229 U. S. 523, 525, 526, 33 Sup. Ct. 806, 57 L. Ed. 1313. Other cases cited throw no useful light upon the question. Reviewing the entire matter, we conclude that under the language of the Bankruptcy Act and of the general orders in bankruptcy a referee, by virtue of a general reference under order XII (1), has not jurisdiction over a plenary suit in equity brought by the trustee in bankruptcy against a third party to set aside a fraudulent transfer or conveyance under section 70e, and affecting property not in the custody or control of the court of bankruptcy. Decree of the Circuit Court of Appeals reversed, and decree of the District Court affirmed. (253 U. S. 339) STALLINGS v. SPLAIN, U. S. Marshal. 1. CRIMINAL LAW 242(10) — EXTRADITION DISTRICT MAY BE ARRESTED WITHOUT WAR- Since a peace officer in the state in which a fugitive from another state is found may arrest the fugitive without warrant and detain him for the reasonable time necessary for requisition proceedings, a marshal of the District of Columbia can arrest there a fugitive indicted in another district on the warrant issued in the other district, which at least would serve as an evidence of reasonable cause to believe a felony had been committed. Where a petitioner for habeas corpus to review the legality of his arrest to answer an indictment in another district, pending the hearing on the writ, voluntarily gave bail for his appearance in the other district to answer the charge, he cannot be discharged in the habeas corpus proceedings. 4. HABEAS CORPUS 10-GIVING BAIL FOR Habeas corpus proceedings to determine the THORIZED TO RECEIVE FEES AND COMMISSIONS Since the duties of officers can be prescribed by rule, a United States commissioner is charged with the duty of receiving fees and commissions on applications by land entrymen, to be transmitted to the register and receiver, under Rev. St. § 2294, as amended by Act davits before commissioners the same effect March 4, 1904 (Comp. St. § 4546), giving affias those before the register and receiver, when transmitted to them with the fees and commissions allowed and required by law, and the Land Office rule, directing proof taken by commissioners to be transmitted to the receiver with the necessary fees and commissions. 6. CRIMINAL LAW 242(6)-DOUBTS AS TO INDICTMENT NOT DECIDED BY COMMITTING MAGISTRATE IN PROCEEDINGS FOR REMOVAL. Doubts as to the validity of an indictment in another district are not to be resolved by the committing magistrate in proceedings for removal to that district, but by the court which found the indictment after the removal. Appeal from the Court of Appeals of the District of Columbia. Habeas corpus proceedings by Leslie C. Stallings against Maurice Splain, United States Marshal in and for the District of Columbia. An order of the Supreme Court of the District of Columbia, dismissing the petition for habeas corpus, and a petition for certiorari in aid thereof, was affirmed by the Court of Appeals for the District 2. HABEAS CORPUS 69-DOES NOT GIVE IM- (49 App. D. C. 38, 258 Fed. 510), and petitioner appeals. Affirmed. MUNITY FROM ARREST ON OTHER PROCESS. The fact that prisoner is in the custody of the court by virtue of a writ of habeas corpus does not give him immunity from arrest for a different offense or under proceedings for his removal to the district in which he was charged with committing the offense for which he was originally arrested, which proceedings must be brought within a reasonable time after his arrest. $340 *Mr. William B. Jaynes, of Washington, D. C., for appellant. Mr. Solicitor General King, for appellee. Mr. Justice BRANDEIS delivered the opinion of the Court. Stallings was indicted in the District Court of the United States for the District of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes not legally be rearrested for the same offense until the habeas corpus proceeding had been disposed of; (b) because the affidavit and the indictment fail to charge a crime against the United States. [1] First. The original arrest and detention were lawful. A person, duly charged with a felony in one state, may, if he flees to another, be arrested, without a warrant, by a peace officer in the state in which he is found, and be detained for the reasonable time necessary to enable a requisition to be made. Burton v. New York Central Railroad, 245 U. S. 315, 318, 38 Sup. Ct. 108, 62 L. Ed. 314. See Kurtz v. Muffitt, 115 U. S. 487, 504, 6 Sup. Ct. 148, 29 L. Ed. 458. The rule is not less liberal where the fugitive stands charged by an indictment found in one federal district and flees to another. *342 Wyoming for embezzling moneys intrusted were without jurisdiction, since he could to him as United States commissioner. Being in the District of Columbia, he was arrested there by Splain, marshal for the District, and was detained to await the institution of proceedings for his removal. In making the arrest Splain had relied, not upon a warrant issued by a commissioner for the District, but upon a bench warrant issued to the marshal for the district of Wyoming on the indictment. Stallings filed immediately in the Supreme Court of the District of Columbia a petition for writ of habeas corpus, contending, for this reason apparently, that the arrest and detention were illegal. The writ issued, Splain produced the body, the hearing on the writ was postponed, and Stallings was admitted to bail. While he was at large on bail, awaiting a hearing in the habeas corpus proceedings, an affidavit of complaint was filed before a United States commissioner for the District, setting forth the same offenses charged in the indictment. A warrant issued thereon, but Stallings was not arrested. He appeared voluntarily before the commissioner, admitted his identity and that he held the office named at the times the offenses were charged to have been committed, declined to offer any evidence, and moved that he be discharged. The commissioner denied the motion. Then, certified copies of the indictment and other papers having been introduced, he found probable cause. No order was made that Stallings be held to await an application for his removal. He requested that he be admitted to bail for his appearance in Wyoming to answer the charges *341 *against him. The bail was fixed at $2,000 and was furnished. See *2 Moore on Extradition, § 540. If the bench warrant issued in Wyoming was not effective as a warrant within the District of Columbia, the possession of it did not render illegal an arrest which could lawfully have been made without it. It would, at least, serve as evidence that Splain had reasonable cause to believe that a felony had been committed by Stallings. Commonwealth v. Phelps, 209 Mass. 396, 404, 95 N. E. 868, Ann. Cas. 1912B, 566. [2] Second. The pendency of the habeas corpus proceeding did not deprive the commissioner of jurisdiction to entertain the application for arrest on the affidavit of comwrit, brought Stallings before the court, he plaint. When Splain, in obedience to the passed from the custody of the marshal into that of the court, and he remained under its protection and control, although enlarged After this Splain filed a return to the on bail. Barth v. Clise, 12 Wall. 400, 20 L. petition for writ of habeas corpus, setting Ed. 393. But he did not thereby become up the above facts, and Stallings demurred. immune from all other process until the He also secured, in aid of the habeas corpus habeas corpus proceedings should have been proceeding, a writ of certiorari, by which finally disposed of. Commonwealth v. Hall, all proceedings before the United States com- 9 Gray (Mass.) 262, 69 Am. Dec. 285. Lack missioner were certified to the Supreme of jurisdiction in the commissioner did not Court of the District. The case was then follow from the fact that the court had acheard both upon the demurrer to the petition quired, by virtue of the habeas corpus profor writ of habeas corpus and upon the ceedings, the custody of and control over return to the writ of certiorari. The demur- Stallings. Even if the affidavit of complaint rer was overruled; and, Stallings electing had related to another indictment brought to stand thereon, the court dismissed the in a different district, the commissioner petition for a writ of habeas corpus and would have had jurisdiction to entertain it. discharged the writ issued thereon. The The question would merely have been whethpetition for a writ of certiorari and the writer a second arrest could properly be made issued thereon were also dismissed, and the where it conflicted with the first. Peckham proceedings were remanded to the commis- v. Henkel, 216 U. S. 483, 30 Sup. Ct. 255, sioner for further action. Stallings appealed 54 L. Ed. 579; In re Beavers (D. C.) 125 to the Court of Appeals for the District, Fed. 988; Id. (C. C.) 131 Fed. 366. Here which affirmed the final order below. 49 there could be no conflict; for the second App. D. C. 38, 258 Fed. 510. It is contended arrest, if it had been made, would have been here that Stallings should be discharged: merely for the purpose of carrying out the a) Because the original arrest and detention first. The government was not precluded on the bench warrant were illegal and the from taking such additional proceedings as later proceedings before the commissioner it might deem necessary or advisable to sup |