The declarations of the deceased, made at a time when he, despaired of his recovery, and felt assured that though lie was something better after the physician attended him, his disease would prove ultimately fatal, appear to me to have been properly admitted. The latest and most authoritative cases shew that the Court is to decide, and not the Jury, whether the deceased made the declaration under the apprehension of death — (1 East’s FI. Cr. 357, John’s case.) But as to the declarations of John Skinner, I know of no principle upon which they could be received as evidence against the prisoners. Even if he were a party to the record, they could be evidence only against himself, and not against the other Defendants. .For this reason there ought to be a new trial. Whether the Superior Court of Chowan had jurisdiction of this case, depends upon the construction of the act of 1816, c. 912. The words of the second section arc, “ that such cases may be removed for trial ' to an adjoining county upon affidavit of the owner, or, in his absence, of the counsel of such slave or slaves, in the same manner as causes may now be removed by freemen.” By the preceding act of 1813, c. 853, suits may be removed by consent: but there is nothing in the phraseology to warrant a belief that criminal prosecutions were intended to be included. On the contrary, where the Legislature provide for their removal, they use different language, as in the act of 1808, c. 745, in which the words are, “ that no cause, civil or criminaland it then proceeds to require an affidavit for their removal. The samé expressions, “ all causes, civil and criminal,” are used in the act of 1806, c. 693. From all which, the conclusion is, that as criminal causes could not in 1816, be removed otherwise than by affidavit, it was not competent for the owner of the slaves and their counsel, to consent to the removal of this. I am, therefore, of opinion that a new trial should take place *445in Washington Superior Court, unless the case be properly removed by affidavit.
By the act of 1813, N. R. 1274, the parties in a suit may remove it by consent y and should the word suit embrace criminal prosecutions for capital offences, a removal by consent of the owner, or counsel of a slave, or the consent of both, is neither within the words or spirit of the act, for they are not parties. But it is inferred, that as a cause may be removed upon the affidavit of the owner or counsel, it may be removed by their consent. I think such inference is incorrect. The object of the law is to obtain an impartial trial, and when it is made to appear to the Court, that in all probability such object is unlikely to be obtained in the Court where the cause is pending, the Court is directed to remove it; and it is a matter of not much moment from what source the information comes : it.is the act of the Court upon such information. The Court perceives, if the fact be true, that the purposes of justice will be forwarded by a removal; and therefore, in conformity to the purposes before mentioned, the Legislature gave to the owner or counsel, the power of shewing on-oath the facts upon which the Court acts. But whether the purposes aforesaid will be answered, when the owner or counsel consents to the removal, do not appear. What are the reasons for such assent, need not be stated: there may be none, and therefore it would be better, perhaps, for the slave to be tried in the county where the offence is alleged to have been committed. The character, both of the accused and witnesses, would be better known; or the motive may be to obtain an unfair trial; and it is no answer to say, that the counsel or owner might obtain the same thing upon their affidavits; it is true they may, but in so doing they must commit a perjury, and every power or privilege may be abused. I therefore think, that the cause was never properly in *446Chowan Court, and that the trial there was a perfect nuMity. Judgment of death pronounced by that Court, must therefore be reversed: the Court of Washington will procee(| tjie tria^ as jf no Such proceedings had ever been,- as have taken place in Chowan. This view of the case renders it not absolutely necessary to express an opinion on that part of the case which respects the declarations of John Skinner, being given in evidence to the Jury. But perhaps it will prevent another appeal to this Court, shortly to state the reasons why we think they ought not to have been received, as, possibly, our silence on the subject may be construed into an approbation. The rule has never been carried farther than this, that when a common design is proven, the act of one, in furtherance of that design, is evidence against his associates : it is in some measure the act of all; but the declarations of one of the parties can be received only against himself. As to the dying declarations of the deceased, I concur in the opinion of the Chief-Justice.
Haul, Judge, concurred.