The petitioner must be discharged. We *320have no doubt of tbe power of the proper court to detain witnesses upon a proper showing, but such showing should in all cases be made, and the witnesses given a hearing* and an opportunity to be heard, before commitment. In the present case petitioner has not been accorded an opportunity to refute the showing made by affidavit or to' be heard respecting the matter.

Complaint is made that the petitioner has been confined in the same apartments with persons charged with crime.. Section 8941, How. Stat., provides that—

“Prisoners arrested on civil process shall be kept in rooms separate and distinct from those in which prisoners-detained on a criminal charge or conviction shall be confined, and on no pretense whatever shall prisoners on civil and criminal process be put or kept in the same room.”

Persons detained as witnesses must, we think, be regarded as persons held upon civil process, and must be SO' treated in this respect.