Opinion of the Court delivered by

Pool brought his suit against Barker before a justice of the peace, judgment was there given for the plaintiff. The defendant appealed to the circuit court, and in that court judgment was again given for the plaintiff; to reverse which Barker brings the cause here on a writ of error. The evidence, appearing on the record, shows that the action was brought to recover damages sustained by Pool, the plaintiff, by reason of the negligence of the servant of Barker. It was proved, that sometime in February last, a negro slave of Barker was ordered by him to burn a stubble Held, and that in burning the stubble fold he accidentally suffered tlje fire to be communicated to a stack yard, in which were a wheat fan, and three gums filled with flax seed, all belonging to the plaintiff Pool. The stack yard was adjoining to the stubble field, and'a part of the same tract of land; it was also proved, that Barker had bought this land from Pool, and that he was to have possession on the first of March.— Pool, it also appeared, had removed from this tract of land before the burning of the fan- &c., and Barker was in possession peaceably it seems, although the first of March had not then arrived. The circuit court was requested by the defendant to instruct the jury: 1st. That the defendant was answerable only in case of gross neglect, in case they should find that he was in the legal possession of the farm on which the property was burned. 2nd. That he was liable only for gross neglect, 3rd. That he was not liable if *262^16 toolc ^18 same care dfeitroyed property that be did of his own. 4th. That iie was not liable if the stubble field was found to be his own land, and that he set fire to it without intending to do any injury to the plaintiif. The court gave the first and second instructions and refused to give the third and fourth. The court then instructed the jury: 1st. That if they believed that Barker’s servant by his order had set fire to the stubble field, and that through the negligence of the servant Pool sustained any injury Barker was answerable. 2nd. That Barker was liable if it should be found that his servant had through negligence permitted the fire to be communicated to the stack yard. The defendant excepted to the refusal of the court to-give the instructions asked by himself and to the giving of those a.-ked by the plaintiff. The defendant moved for a- new trial; because, 1st. The verdict was against evidence. 2nd. It was against law. 3rd. Because the court rejected the instruction prayed by him and gave those asked by the plaintiff. 4th. Because the court permitted the jury to carry law books to. their room and construe it for themselves.

*262The character of Barker’s possession is not very well ascertained by the evidence in the case. One witness stated that Pool had sold Barker the premises, and contracted to give possession on the first of March, yet, in February, Barker appears to have been in peaceable possession. The jury should have been told that i ( they believed him to be in possession, by and with the consent of Pool, then he was bound only to use such diligence as a prudent man used about his own affairs; and would be answerable only for gross negligence. But if they had found him in possession without the consent of Pool,, a different and much, higher degree of diligence would be required. The- probability, however, is that he was there by the consent of Pool, as nothing to the contrary appears in evidence. The circuit court committed error in suffering law books to be taken to. thp jury, and to leave them to construe the law for them* selves. It is clearly the duty of the court to deliver the law governing the cause to the jury in the form of instructions, and not to leave books in their possession to find what the *263law Is. Oils of the reasons assigned for reversing the judgment of the circuit court,' was that that court had not, on the motion of the defendant Barker, dismissed the cause; because, as he says, the plaintiff when he commenced his suit before the justice did not file a bill of items of his account with the justice, in conformity with the provisions of 9th lection of the 2nd article of the act to establish justices court &c. p. 351, of the digest of 1835. On an inspection of the justices transcript a bill of the items is found, and as the justice is required to send up the original papers we must suppose that this is a copy of the bill filed. The justice may have made this statement in compliance with the 8th sect, of the 3rd art. of the same act see page 354. At most, the neglect of the plaintiff, to file such a bill of items, could entitle the defendant to nothing more than a continuance of 'his cause, on account of surprise. The circuit court then, it seems to me, committed no error in refusing to dismiss the cause for -this reason, but because that court permitted the law books to bo sent to the jury its judgment is reversed ■and the cause remanded.