SILENCE. The state of a person who does not speak, or of one who refrains from speaking.
2. Pure and simple silence cannot be considered as a consent to a
contract, except in cases when the silent person is bound in good faith
to explain himself, in which case, silence gives consent. 6 Toull. liv.
3, t. 3, n. 32, note; 14 Serg. & Rawle, 393; 2 Supp. to Ves. jr.
442; 1 Dane's Ab. c. 1, art. 4, §3; 8 T. R. 483; 6 Penn. St. R. 336; 1
Greenl. Ev. 201; 2 Bouv. Inst. n. 1313. But no assent will be inferred
from a man's silence, unless, 1st. He knows his rights and knows what he
is doing and, 2d. His silence is voluntary.
3. When any person is accused of a crime, or charged with any fact, and
he does not deny it, in general, the presumption is very strong that the
charge is correct. 7 C. & P. 832 5 C. & P. 332; Joy on Conf. s.
10, p. 77.
4. The rule does not extend to the silence of a prisoner, when on his
exanination before a magistrate he is charged by another prisoner with
having joined him in the commission of an offence: 3 Stark. C. 33.
5. When an oath is administered to a witness, instead of expressly
promising to keep it, he gives his assent by his silence, and kissing
the book.
6. The person to be affected by the silence must be one not disqualified
to act as non compos, an infant, or the like, for even the express
promise of such a person would not bind him to the performance of any
contract.
7. The rule of the civil law is that silence is not an acknowledgment or
denial in every case, qui tacet, non utique fatetur: sed tamen verum
est, eum non negaro. Dig. 50, 17, 142.
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