entirely unsupported by the evidence and was properly refused. The only evidence upon which it could be claimed this instruction could be based was, that the deceased ate his lunch after the funeral on the day in question at a place where a bar was conducted in connection with the lunch. room, and that he was a man who occasionally drank liquor. It was not shown that he drank any liquor on this occasion, but the evidence tends to prove that he did not do so. The given instruction complained of is as follows:

"The court instructs the jury that if they believe, from a preponderance of the evidence, that the deceased, Frederick Newman, was killed within the corporate limits of the village of Bellwood by a car of the defendant company while he was in the exercise of ordinary care for his own safety, and that the defendant company was at the time running its said car at a greater rate of speed than ten miles an hour, then the law presumes the death of the said Frederick Newman to have been caused by the negligence of the defendant or its agents."

The objection urged to this instruction is, that it does not tell the jury that the presumption which the law raises from the facts recited is not conclusive and that it may be rebutted, and that it does not state that the jury must believe that the violation of the ordinance was the proximate cause of the injury. This instruction is in the exact language of the one approved in Dukeman v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. 237 Ill. 104, and it was not error to give it so far as the first objection made is concerned. As to the second objection, if plaintiff in error desired to have the jury instructed on that question it should have asked an instruction in its own behalf. The judgment of the Appellate Court is affirmed. Judgment affirmed.

CARTWRIGHT and DUNN, JJ., dissenting.

FRANK M. WILLIAMS et al. Plaintiffs in Error, vs. ANN ELIZA HUEY et al. Defendants in Error.

Opinion filed April 23, 1914.

APPEALS AND ERRORS—an order sustaining a demurrer is not a final, appealable order. An order sustaining a demurrer to a bill is not a final, appealable order even though it adjudges costs, and the Supreme Court, having jurisdiction to review final orders, only, will dismiss, of its own motion, a writ of error sued out to reverse the order.

WRIT OF ERROR to the Circuit Court of Alexander county; the Hon. WILLIAM N. BUTLER, Judge, presiding.

M. A. DEMPSEY, and T. D. HINES, for plaintiffs in

error.

DAVID S. LANSDEN, guardian ad litem, for defendants in error.

Mr. CHIEF JUSTICE COOKE delivered the opinion of the

court:

On March 27, 1912, Frank M. Williams, individually and as guardian of Claude Raymond Williams, and Anna Huey Williams, filed their bill for partition in the circuit court of Alexander county. A guardian ad litem was ap pointed for certain infant defendants, and the guardian ad litem demurred to the bill. The demurrer was sustained, and the complainants having elected to stand by their bill, a decree was entered "that the said defendants have and recover of and from the complainant herein their costs in this behalf expended, and that in default of payment execution issue therefor; to which judgment the complainants except and pray an appeal, and this cause is continued generally." This was the only order or decree entered. It did not dismiss the bill or otherwise finally dispose of the cause, but, on the contrary, the cause

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was continued. This writ of error has been sued out to review this decree.

An order sustaining a demurrer, although it adjudges costs, is not a final decree. As the statute only authorizes final judgments or decrees to be reviewed by appeal or writ of error this court has no jurisdiction of the cause and will dismiss the writ of error of its own motion. Chicago Portrait Co. v. Crayon Co. 217 Ill. 200; County of Franklin v. Blake, 257 id. 354.

The writ of error is dismissed.

Writ dismissed.

FRANK M. MCKEY, Appellee, vs. WILLIAM EMANUEL et al.

Appellants.

Opinion filed April 23, 1914.

I. BANKRUPTCY-bill by trustee in bankruptcy to set aside conveyance is not a creditor's bill. A bill by a trustee in bankruptcy to set aside a deed to the bankrupt's wife as a voluntary conveyance in fraud of creditors is not a creditor's bill but is a bill to reduce to possession the equitable assets of the bankrupt, and may be filed without an execution having first been issued on the judgments secured by creditors of the bankrupt.

2. SAME when conveyance to wife is void as to creditors. A warranty deed to the wife made by the husband a few months before his bankruptcy may be set aside at the suit of the trustee in bankruptcy as in fraud of creditors, where it does not satisfactorily appear from the evidence that the transaction was regular and in good faith or the deed was based upon a valuable consideration.

3. SAME-after an adjudication in bankruptcy, creditors cannot reduce claims to judgment. After an adjudication in bankruptcy and the appointment of a trustee, creditors will not be permitted to reduce their claims to judgment in the ordinary way, nor sue out an execution and levy the same on any part of the estate of the bankrupt.

APPEAL from the Circuit Court of Cook county; the Hon. CHARLES M. Walker, Judge, presiding.

S. A. MCELWEE, for appellants.

JAMES D. POWER, for appellee.

Mr. CHIEF JUSTICE COOKE delivered the opinion of the

court:

On August 21, 1908, appellant William Emanuel conveyed his homestead in the city of Chicago to his wife, Fanny Emanuel, the other appellant here, by warranty deed. On January 23, 1909, James E. Stanley procured a judgment against William Emanuel in the municipal court of Chicago for $2900 and costs. On January 25, 1909, Emanuel filed his petition in bankruptcy in the United States district court and on the following day was adjudged a bankrupt. On February 11, 1909, Frank M. McKey, the appellee, was appointed trustee of the estate of Emanuel, and later filed his bill in the circuit court of Cook county to set aside the conveyance of Emanuel to his wife of August 21, 1908, as a voluntary conveyance made in fraud of Emanuel's creditors. The chancellor found the conveyance fraudulent and entered a decree directing Emanuel and his wife to convey the property to appellee, as trustee in bankruptcy, within thirty days, and in case of default of appellants in making conveyance that the master in chancery of that court should make the conveyance. This appeal has been prosecuted from that decree.

The first point urged by appellants is, that the decree should be reversed and the bill dismissed for the reason that no execution was shown to have ever been sued out on the Stanley judgment. This is not a creditor's bill filed by a judgment creditor to subject the real estate to the lien of his judgment, but is a bill by a trustee in bankruptcy for the purpose of reducing to possession the equitable assets of the bankrupt. It is not a prerequisite to the filing of such a bill that execution should have been issued upon judgments secured by creditors of the bankrupt. After the adjudication of bankruptcy no creditor would be permitted to reduce his claim to judgment in the ordinary way, nor

would he be permitted to sue out an execution and levy the same upon any part of the estate of the bankrupt.

The main contention of appellants is that the decree is not supported by the evidence. Appellants were the principal witnesses both on the part of the complainant and in their own behalf. They attempted to establish the fact that the transfer was bona fide and for a valuable and adequate consideration. Emanuel had been examined before the referee in bankruptcy in February, 1909, concerning the conveyance of this property to his wife, upon his failure to include it in his schedule, and a transcript of that testimony was offered and admitted in evidence. He testified before the referee, according to this transcript, that he could not explain how his wife's title to the property was secured; that it had been conveyed to her four or five months before the time of that examination; that he could not remember whether it was before he had been sued by Stanley or before he had learned that Stanley was making any claim against him. When he was asked if he ever sold that property to anyone, and particularly if he ever sold it to his wife, he replied, "Well, I am not able to state that positively just how the transaction was." He was then asked three questions, which varied in form but were all the same in substance, whether his wife had paid him any money or anything for that property. To each of these questions he replied that he did not remember just exactly how the matter was brought about. When asked if that was the best answer he could make, he replied that it was the best answer he could make at that time. On the hearing in this case he testified that at the time the deed was made and delivered his wife did not pay him any money. When Mrs. Emanuel was placed upon the stand she testified at the forenoon session of the court that she remembered when the deed was made and that at that time she paid her husband $200. When recalled to the stand in the afternoon she testified that the $200 had been paid long