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the event of the death of the insured would not belong to their respective estates, but to the beneficiaries: Hendrie etc. Mfg. Co. v. Platt, 13 Colo. App. 15, 56 Pac. 209. This as signment was made for their benefit when, so far as the bill and proofs disclose, the insured had the right to do so. It does not appear that the plaintiff was in any manner prejudiced thereby, or that any property of the insured was applied in order to effect this arrangement, which in equity plaintiff would be entitled to have applied to the payment of its indebtedness, or that any conditions exist which would authorize a court of equity, at the instance of a creditor, to annul a voluntary arrangement on the part of the insured for the benefit of those for whom, by the laws of Nature as well as man, it was their duty to make provision. If the latter should be compelled to surrender these policies to the companies issuing them and accept the value thereof, the rights of the beneficiaries would be destroyed. The insured may have interests in these policies which a court of equity, if their rights only were involved, might have the power to compel them to apply to the payment of their indebtedness; but however this may be, a court of equity would not be authorized to exercise this power when thereby the vested rights of third persons would be destroyed, unless it should appear that the conditions existed under which a court of equity, at the instance of a creditor, may annul voluntarily arrangements entered into between his debtors and third persons.

The judgment of the district court is affirmed.

Mr. Justice Gunther and Mr. Justice Maxwell concur.

When an Insolvent Debtor Takes Out and Pays the Premium on an endowment insurance policy on his life in favor of his wife, and she receives the endowment from the insurer during the lifetime of the insured, she takes it, or the property in which it is invested in her name, subject to the claims of her husband's creditors: Talcott v. Field, 34 Neb. 611, 33 Am. St. Rep. 662. See, also, Tompkins v. Levy, 87 Ala. 263, 13 Am. St. Rep. 31. But a policy of life insurance on which the premium is payable quarterly until twenty years' premiums have been paid, and which is subject to forfeiture if any of the premiums are not paid when due, but which gives the policy. holder the right to surrender the policy after three full annual payments have been made and to receive a policy for paid-up insurance, is not subject to execution, nor to the lien of that writ, during the lifetime of the assured, though three years' premiums have been paid: Boisseau v. Bass, 100 Va. 207, 93 Am. St. Rep. 956.

As to the Demands Which will Support a Creditor's Bill, see the note to Ladd v. Judson, 66 Am. St. Rep. 271.


[35 Colo. 159, 85 Pac. 190.]

HABEAS CORPUS-Pleading.-A return to a writ of habeas. corpus is a response to the writ itself and not an answer to the petition therefor, and the respondent should in his return simply seek to relieve himself from the imputation of having imprisoned the petitioner without lawful authority by statements in the return from which the legality of the imprisonment may be determined without regard to the statements of the petition for the writ. He is not required to make any issue on the petition for the writ, but simply to answer the writ. (p. 192.)

INSURRECTION-Power to Call Out Militia. It is the duty of the governor to determine as a fact when a state of insurrection exists in any given locality, such as to demand that in the discharge of his duties as chief executive of the state he shall employ the state militia to suppress, and his determination of such fact cannot be controverted. (p. 192.)

INSURRECTION-Power of Militia to Arrest.-If the governor has called out the militia of the state to suppress an insurrection, such militia has authority to arrest and imprison any person taking part in it or aiding and abetting the insurrection, and to detain him in custody until it is suppressed. (pp. 193, 194.)

INSURRECTION—Military Arrest-Habeas Corpus.-If, while the military authorities are engaged in suppressing an insurrection, they arrest and imprison a person for aiding and abetting it, his arrest is legal and his detention in the custody of such authorities until the insurrection is suppressed is also legal, and he is not entitled to his release on habeas corpus. (p. 196.)

Richardson & Hawkins, for the petitioner.

N. C. Miller, attorney general, H. J. Hersey, I. B. Melville, assistants attorney general, and J. M. Waldron, for the respondents.

160 GABBERT, C. J. On behalf of Charles H. Moyer, a petition was presented representing that he was illegally restrained of his liberty in the county of San Miguel 161 by Sherman Bell and Bulkeley Wells. A writ of habeas corpus was issued, directed to these parties who, on the day it was returnable, produced the petitioner in court, and at the same time made a return to the writ whereby the jurisdiction of this court to further proceed in the matter was challenged. The averments upon which the claim of want of jurisdiction is based are to the effect that prior to the detention of petitioner His Excellency Governor Peabody, by proclamation, had determined and declared the county of San Miguel to be in a state of insurrection, and that, by reason of lawless

ness, disturbances and threatened acts of violence, the civil authorities of the county were unable to cope with the situation. In pursuance of this proclamation the governor directed the respondent, Sherman M. Bell, adjutant general of the state of Colorado, to forthwith order out such troops as in his judgment might be necessary, and report to the sheriff of San Miguel county, and that he use such means as, in his judgment, might be right and proper to restore peace and good order in the county and enforce obedience to the constitution and laws of the state. In pursuance of this order General Bell proceeded to the county of San Miguel in charge and command of members of the Colorado national guard, and ever since has been, and now is, actively engaged in quelling the disturbances which called forth the proclamation and the executive order above referred to; that in the discharge of these duties he became convinced that petitioner had been and, if discharged from arrest, would continue to be, an active participant in fomenting and keeping alive the condition of insurrection existing in the county; that he was and is a prominent leader of those engaged in the acts of insurrection and crime, to suppress which the national guard was called into requisition; that for these reasons he caused the arrest, apprehension 162 and detention of the petitioner in the county of San Miguel, and does now restrain, detain and imprison him for the reasons and upon the grounds above set forth; that it is his purpose and intention to release and discharge petitioner from military arrest as soon as the same can be safely done with reference to the suppression of the existing state of insurrection in the county, and then surrender him to the civil authorities to be dealt with in the ordinary course of justice after such insurrection is suppressed. It is further stated that the governor has issued orders and instructions to General Bell not to surrender or release the military custody of petitioner during the existence and continuing condition of affairs in the county of San Miguel, as mentioned and set forth in the proclamation and executive order of his excellency. It is also stated that the respondent, Bulkeley Wells, is a subordinate military officer under the direct command of General Bell, and that his acts in the premises with reference to the arrest and detention of petitioner have been by virtue of express commands in that behalf issued to him by his superior officer.

To this return is appended the certificate of Governor Peabody, to the effect that the matters and things set forth in the return are true, and that the arrest and present detention of petitioner were had and done in pursuance of the authority conferred upon him by the constitution of the state; that the acts of General Bell in arresting and detaining petitioner were done by his express sanction as governor of the state and commander-in-chief of its military forces, and that the insurrection recited in his proclamation has not as yet been fully suppressed. To this return a reply was filed by petitioner in the nature of a general demurrer to the effect that it is wholly insufficient in law to constitute any justification whatsoever, either for the arrest, imprisonment or further 163 detention of petitioner. The reply also alleges that neither on the date of the proclamation and order of the governor nor at any other time has there been a state of insurrection in the county of San Miguel.

Counsel for petitioner contend that on the facts above stated he is entitled to his discharge because the governor has no power to suspend the privilege of the writ of habeas corpus or declare martial law; or that, if he has such power, he has not assumed to exercise it. Special counsel representing the respondents controverts these propositions, and further contends that this court is without jurisdiction to proceed further than to deny the relief demanded, or remand the petitioner to their custody. The attorney general claims that the governor, independent of the questions of his power to declare martial law, suspend the privilege of the writ of habeas corpus, or the question of the jurisdiction of this court, is fully authorized under the constitution and laws of the state to suppress insurrection and lawless conditions through the power of the military under his command, and that his subordinate officers actively engaged in suppressing such insurrection by seizing and holding those engaged in acts of violence or in advising and aiding such acts to suppress which the military was called out, cannot be interfered with so long as conditions exist which require the action and the presence of the military to correct. Counsel amici curiae, in their views on these several questions, are divided.

The purpose of proceedings in habeas corpus is to determine whether or not the person instituting them is illegally restrained of his liberty, and we shall proceed to determine

whether or not, under 164 the facts stated and the laws of this state, the petitioner is entitled to his discharge, without attempting to pass specifically upon the questions raised by his counsel. Before proceeding, however, to a discussion and determination of this question, two propositions are presented which should be disposed of. It is urged by counsel for petitioner that certain averments in the petition for the writ are not controverted by the return. The latter is not treated as an answer to the application, but, rather, as a response to the writ itself. The averments of the petition are made for the purpose of obtaining the writ, and the respondent, in his answer thereto, simply seeks to relieve himself from the imputation of having imprisoned petitioner without lawful authority, and this he does, or, rather, is required to do, under the law, by statements in the return from which the legality of the imprisonment is to be determined, without regard to the statements of the petition for the writ. In short, he is not required to make any issue on the petition for the writ, but to answer the writ: In re Chipchase, 56 Kan. 357, 43 Pac. 264; Ex parte Durbin, 102 Mo. 100, 14 S. W. 821; Simmons v. Georgia Iron etc. Co., 117 Ga. 305, 43 S. E. 780, 61 L. R. A. 739.

By the reply it is alleged that, notwithstanding the proclamation and determination of the governor that a state of insurrection existed in the county of San Miguel, that, as a matter of fact, these conditions did not exist at the time of such proclamation or the arrest of the petitioner, or at any other time. By section 5, article 4 of our constitution, the governor is the commander-in-chief of the military forces of the state, except when they are called into actual service of the United States, and he is thereby empowered to call out the militia to suppress insurrection. It must, therefore, become his duty to determine as a fact when conditions exist in a given 165 locality which demand that in the discharge of his duties as chief executive of the state he shall employ the militia to suppress. This being true, the recitals in the proclamation to the effect that a state of insurrection existed in the county of San Miguel cannot be controverted. Otherwise the legality of the orders of the executive would not depend upon his judgment, but the judgment of another co-ordinate branch of the state government: In re Boyle, 6 Idaho, 609, 96 Am. St. Rep. 286, 57 Pac.

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