PRESENCE. The being in a particular place.
In many contracts and judicial proceedings it is necesaary that the parties should be present in order to render them valid : for example, a party to a deed, when it is executed by himself, must per sonally acknowledge it, when such acknowledg ment is required by law, to give it its full force and effect, and his presence is indispensable, unless, indeed, another person represent him as bis attor ney, having authority from him for that purpose.
Actual presence is being bodily in the precise spot indicated.
Constructive presence is being so near to or in such relation with the parties actually in a designated place as to be considered in law as being in the place.
2. It is a rule in the civil law that he who is incapable of giving hie consent to an act is not to be considered present although he be actually in the place. A lunatic, or a man sleeping, would not, therefore, be con sidered present. Dig. 41. 2. 1. 3. And so if insensible, 1 Doug 241; 4 Brown, Parl.
Cas. 71; 3 Russ. Ch. 441; or if the act were done secretly so that be knew nothing of it. 1 P. Will. Ch. 740.
3. The English Statute of Frauds, 5, directs that all devises and bequests of any lands or tenements shall be attested or sub scribed in the presence of said devisor. Under this statute it has been decided that an a,ctual presence is not indispensable, but that where there was a constructive presence it was sufficient: as, where the testatrix executed the will in her carriage standing in the street before the office of her solicitor, the witness retired int,o the office to attest it, and it being proved that the carriage was accidentally put back, so that she was in a situation to see the witness sign the will, through the window of the office. Brown, Ch. 98. See 2 Curt. Eccl. 320, 331 ; 2 Salk. 688 ; 3 Russ. Ch. 441 ; 1 Maule & S. 294 ; 2 Carr. & P. 491.