Gilchrist, J.Cochran had no authority from the plaintiff to take up goods on his account exceeding the amount of two or three dollars. When the defendant was informed that he had taken up goods to the amount of between eleven and twelve dollars, he said that the plaintiff had better not deliver him any more goods so. If the prohibition to the-plaintiff to deliver Cochran any more goods implied a recognition of his indebtment for the amount already delivered, then the defendant is liable for the whole amount delivered, and the balance of accounts due the plaintiff is the sum of $14.43. But this would not be the reasonable construction of what was said by the defendant. It may with some-*507plausibility be argued, as it has been, that if the defendant did not mean to hold himself liable for the excess beyond, the sum of two or three dollars, he should have said so in express terms. Silence is often fairly enough received as evidence of assent, hut the cases in which so much weight as that is given it, are properly those where an omission to speak is evidence qf bad faith, or where the silence, and omission to make an objection, may have caused the other party to alter his position in some way. In such a case it would have the effect of an estoppel in pais. But in the present case there was no mala fides, nor did the plaintiff alter his position at all, for the goods had already been delivered to Cochran. The defendant was not hound to use the precise language of a special pleader, to exclude a conclusion, or preface his remark or follow it up with an “ absque hoc.” He had a right to presumo that he should not be charged beyond the power he had given Cochran to charge him, and there is nothing in the language used inconsistent with that intention on his part. He answered the plaintiff’s question by saying that “ he had better not let Cochran have any more goods so,” and we do not think this an admission of his liability for all the goods delivered Cochran. The plaintiff, therefore, is entitled to judgment for the sum of $4.61 only.
In relation to the set-off, it is very clear that the defendant cannot use the note for that purpose. He cannot blow both hot and cold as to the same matter, as he attempts to do here. He cannot use the note as a valid and subsisting claim, while he has taken out of court the money paid by Molineux. Having received the amount due on the note, he cannot be heard to say that he did not receive it in satisfaction of his claim. The only reason for this is, that he wishes to use the note as a set-off, which is no reason at all. The note must be considered as paid, and consequently no longer evidence of a debt.
There is also a question, whether Molineux, in addition to *508the bill of costs to which he is entitled as the successful party in this case, shall also be allowed costs under the 36th yule of court, which allows a defendant his costs from the beginning, in cases where the plaintiff does not show that a greater sum than that paid into court, is due him. The court have power to limit and allow such bills of costs as law and justice shall require. N. H. Laws 324, Ed. of 1830. And this action properly comes within the act referred to, and not under the revised statutes. And as the cases are both submitted to us at the same time, we have considered them together, and we think they may be regarded as if there were but one case (the present) between them, in which Eastman had filed his note against Molineux as a set-off. In such case Molineux would ’recover his costs, and we think it js but a reasonable exercise of the discretion of the court, to gllow him but one bill of costs in both cases.
Judgment for the plaintiff.