
    Newman, Plaintiff in Error, against Van Antwerp, Defendant in Error.
    This court, on granting a rule, that tho writ of error and transcript from the supreme court bo not received, pursuant to the first rule of this court, has no power to award tho costs of the motion.
    Till the writ of error be returned, tho court of errors are not in possession of the cause, so as to render any judgment.
    The power of this court to give costs, upon a writ of error, depends upon statute (1 R. L. 346 ;) which does not provide for costs on a mere no rccijpiaiur.
    
    On moving for, and taking a rule that the writ of error and transcript in this cause be not received, under the first general rule of this Court, (16 John. Rep. 603,)
    
      W. Sampson, for the defendant,
    moved also for the costs of the motion ; and to support this branch of the application, he relied on Webb v. Brown, (19 John. Rep. 453.)
    Colden, Senator. The power of this Court to give costs, on a writ of error, depends upon the statute concerning costs. (1 R. L. 343.) Sections 13, 14 and 15 of this statute, (id 346,) provide for costs upon affirmance, reversal, nonsuit, discontinuance and quashing the writ of error; but I am aware of no statute which gives costs upon a mere rule not to receive the writ. It is true that costs were given in the case cited; but the point was not made by counsel; and probably not thought of by the Court. We are not yet possessed of the cause ; and have no materials before us on which to frame a record of judgment.
    CRAMER, GARDINER, HaIGHT, KeYES, Lake, LyNDE, McCall, McIntyre, Wilkinson, and Wright, Sena tors, concurred.
    Sanford, Chancellor. I should regret such a want ol power in this Court. If there he no means of punishing a party in costs, who brings his writ of error and delays his adversary, without cause, there is a defect in the law. This may not be technically a discontinuance; but I incline to consider it one, within the thirteenth section of the statute, 1 R. L. 346, and am disposed to follow the case cited. I agree that the court should not give costs, unless they are authorized to do so by the statute. When a writ is issued, there is a cause commenced and pending, which is susceptible of a discontinuance.
    Bowman, Burt, Dudley, Earll, Ellsworth, Greenly, Lefferts, McMichael, Redfield, and Wooster, Senators, concurred.
    The Court being thus equally divided, the casting voice was given by
   Tallmadge, President. I think costs are not warranted by the statute. To my mind this is neither a nonsuit nor discontinuance. The penalty imposed by the first rule of the Court, upon which the defendant in error comes here, is, that in default of returning the writ of error and transcript, the plaintiff in error shall lose the benefit of the writ. Nothing is there said of costs, or that any judgment shall be rendered. The course under that rule is to proceed summarily, by motion, for a mere ne recipiatur. I think we are not possessed of the cause, for the purpose of rendering any judgment whatever, properly so called, until the writ be returned. This may be a casus omissus, in the statute; but the question is not very important. The costs on a motion of this kind cannot much exceed a retaining fee. I think they cannot be allowed.

Rule accordingly.

GENERAL RULE.

July 6z7t, 1825.

Ordered, that whenever an appeal or writ of error shall be brought on for argument, and the Reasons of the Court below shall not be annexed to the case, the cause shall not be heard, unless it shall be made to appear by affidavit, that application was made for such reasons, and that the same could not be obtained.

RECEPTION OF GENERAL LA FAYETTE.

On the evening of- the 3d of July, the business of the Court not being yet completed, and the President being informed that

General La Fayette

Would be pleased to visit the Court, they adjourned to 10 o’clock A. M. of the next day, at their chamber in the City Hall. The Court having assembled accordingly, the General soon after appeared, and having been seated, was addressed by the President as follows:

General La Fayette—The Senate of this state, now assembled as a Court of ultimate appeal, have directed me on their behalf, and in behalf of the people of this state, whom we represent, to congratulate you on your safe return to this city, and to tender to you renewed assurances of high respect.

Gratitude for your public services has been evinced from all classes of society; it is steady and unceasing; and will, as it has heretofore, attend you in every vicissitude of life.

But your presence with us on the day of this anniversary, recalls scenes which have passed, and awakens all our sensibilities.

In the helpless infancy of our country, and before it had obtained a place amongst the nations of the earth; and when we Avere oppressed and borne down by the strong arm of tyranny, you came to our succor. You generously put your life and fortune upon the cause of our country. You aided our fathers to establish that independence, the jubilee of which we have this day assembled to commemorate.

In the pride of your youth, and in the vigor of manhood you came clad in arms, to support our just cause, and par take in the perils of our fathers ; it is their children’s joy, in this day of their strength and prosperity, and when the veil of time is closing on the fullness of your years, to acknowledge you as their benefactor. Our mothers taught us in our infancy to lisp your name ; our fathers have instructed us to emulate your example.

Your recent tour throughout this country has enabled you to witness the progress of improvement, and to contrast in your recollection our present with our past condition. The relative condition of a people enslaved, and a people in the full enjoyment of freedom, is here strongly exemplified. The wilderness has vanished before the arm of independent industry. The ignorance of subjects has given way to the intelligence of freemen. Plenty has taken the place of want. Prosperity and strength have been substituted for poverty and weakness. The two millions and a half of subjects whom you came to enfranchise, and to aid in the day of their adversity, now count about eleven millions of hardy freemen, all uniting with one accord, in this celebration. In alluding to the progress of improvement, it will not be forgotten that the Marble Hall, in which we are now assembled, an edifice splendid, even as a monument of the arts, and which the growth of this city has already left, short of its centre, occupies the place which was a common waste without the city, when you toiled in our cause, and was then used' as an open field, upon which mercenary troops were marshalled and sent forth in battle against our fathers.

Such is the character of the blessings which flow from freedom ; such are some of the results proceeding from that independence, and those republican institutions, which we enjoy, and which you assisted to establish ; and to which you first sealed your devotion, with a portion of your blood at the Brandywine. It was the participation in such a cause, and the performance of such deeds, by which you merited the gratitude and gained the devoted friendship of this nation. That friendship has attended you in every subsequent event of your life, and it has ever found you, in the hour of temptation and of trial, faithful to liberty, good order, and a government of laws. The enthusiasm of youth, might have attached you to our cause; the firmness of manhood and the spirit to withstand oppression, might have sustained you when suffering in the prison of Olmutz, but a virtuous love of rational liberty could alone have enabled you to resist the temptations of power and the workings of ambition, when a mighty revolution had placed you at the head of the national guards of France, and invited you to wield the power of that wonderful people.

It was then that danger awaited you. It was then that the love of principle prevailed over the love pf power, and virtue triumphed over ambition.

It is at such moments, in the possession of power and apparent prosperity, when human weakness is most exposed. It was in such moments, when a Caesar, a Napoleon, and an Iturbide fell! It was in such moments when a Washington, a La Fayette and a Bolivar triumphed.

Gen. La Fayette immediately replied in the following terms :

It is to me, sir, an inexpressible but deeply felt gratification, on this solemn anniversary day, to be able to celebrate the joyful jubilee of this great and good city of New York; where, for the first time after an absence of forty years, I have enjoyed the happiness to find myself again on American ground ; and where was begun near eleven months since, that series of welcomes from the American people, and their representatives, which will fill every one of the remaining days and the last instant of my life, with a most ■ lively sense of gratitude and delight.

Now, sir, that gratification is completed, when I am admitted to appear before this respected body, to offer to the gentlemen of the senate, my profound acknowledgments for the favors bestowed upon me by the two branches of the legislature, and to receive from them those highly valued marks of their approbation and friendship expressed by you sir, in so kind and flattering terms, for which I beg you, Mr. President, and all of you gentlemen, to accept my warm anq respectful thanks.

Tho. fourth of July has been the era of a new social orjaitlierto unexampled, and founded on the sovereignty of the people ; on the plain rights of man; on the practice of unalloyed self-government. Its results have exceeded the most sanguine expectations ; its problem has been happily and practically solved; and another problem remains to be solved: how long other nations will prefer paying, at an immense price, the aristocracy and despotism of a few privileged oppressors, to the blessings of freedom and equal rights, under economical and truly representative institutions.

At every step of my visit through the twenty-four United States, on which you are pleased to congratulate me, I have had to admire wonders of creation and improvement. No where can they be more conspicuous, than in the state of New-York, and in the prodigious progress of this city.. Those western parts which I had left a wilderness, I have found covered with flourishing towns, highly cultivated farms, active factories, and intersected by the admirable canal, already becoming the communication of an immense trade ; all in consequence of independence, freedom and a republican spirit.

No higher honor could be bestowed on me, than to have associated my name, to the two great names you have men-” tioned. To the first of them, sir, whose place is above all men in my filial heart, my principal boast is, to have been an adopted son, a faithful disciple. Of the other, no man can be a more exalted admirer than I am ; and permit me to observe, that what my friends and myself have only attempted in the other hemisphere, has been, in South America, and under the liberating auspices of his talents and virtues, happily effectuated. But in every testimony from the people of this state, and their representatives, I am to acknowledge a benevolent kindness, which, if it exceeds my merits, is equalled by the sentiments of my everlasting devotion, respect qnd gratitude.

END OP THE SUMMER SESSION-  