That would have been a question of fact which should have been submitted to the jury with proper instructions as to the law, and should not have been, as it was, assumed by the court.

Under the act entitled " An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed April 16th, 1857, being intoxicated in any public place is a criminal offence : but it is not punishable summarily before a magistrate, unless the accused elects to be thus tried; the act having secured to him the right, in all cases, to give bail to appear before the next Court of Over and Terminer or Sessions, to be held in the county, and to be tried only upon indictment by a grand jury.

THE prisoner was arrested and brought before a justice of the peace, charged with having been found intoxicated in the public streetS His counsel claimed the right to give bail, and presented a recognizance with two sufficient sureties conditioned for his appearance at the next Onondaga Court of SessionS The justice held that the statute required that the offence should be summarily disposed of, and refused to take baiL The prisoner's counsel thereupon sued out a writ of habeas corpus before the Hon.

Daniel Pratt, justice of the Supreme Court, and the case was argued on the return setting forth the above stated factS PRATT, JThe Maine law, as it is called, is repealed in express terms by the license law of the last session of the legislature.

The prisoner, therefore, if punishable at all, must be punished by force of the last act, and by the method of procedure therein provided The material inquiry, there- fore, is to ascertain what method of procedure for the punish- ment of persons found intoxicated in public places is provided for in that act.