It is contended by the defendant that the justice of the peace had no jurisdiction of the cause of action set out in the complaint, and that the judge erred in not submitting an issue as to contributory negligence.
1. The jurisdiction of the courts of justices of the peace to hear and determine actions for injury to personal property and to render judgments therein, not exceeding fifty dollars, is upheld by this court in Malloy v. Fayetteville, 122 N. C., 480, in an opinion by the present Chief Justice, in which all the authorities are collected. We are not disposed to question that decision, but, on the contrary, regard the question as settled by it. The jurisdiction of the justices is not to be measured by the value of the personal property injured. It is to be determined by the amount demanded in the warrant or complaint. It is true there are cases like this where the actual damage sustained exceeds $50, but we see no reason why the plaintiff should not lay his damage at $50. He ean-no.t recover in tort any more than he demands, and having recovered that in one action he is debarred from any further recovery on the same cause of action. Eller v. Railroad, 140 N. C., 140. His Honor should have directed the jury to limit their assessment of the damages to $50, the sum demanded. As His Honor did not do so, and the jury rendered a verdict for $55, we see no good reason why the plaintiff shoirld not be permitted to remit the excess and take his judgment for the sum within the justice’s jurisdiction, and which w'as all the plaintiff sued for. The justice himself fixed the damage at $50 and rendered judgment for that sum, it being *454within his jurisdiction. Because a jury inadvertently assessed the damage at $5 more than the plaintiff demanded, is no reason for ousting the justice’s jurisdiction when the plaintiff is willing to remit the excess. The question is decided in Noville v. Dew, 94 N. C., 43, in accord with the plaintiff’s contention.
2. In this case the pleadings are in writing. The answer fails to set out the acts and defaults of the plaintiff or his servant constituting contributory negligence, and is therefore insufficient to raise the issue. 5 Enc. PI. & Pr., 12. Also, there seems to be an absence in the record of any evidence of contributory negligence.