PRESENCE. The existence of a person in a particular place.
2. In many contracts and judicial proceedings it is necessary that the
parties should be present in order to reader them valid; for example, a
party to a deed when it is executed by himself, must personally acknowledge
it, when such acknowledgment is required by law, to give it its full force
and effect, and his presence is indispensable, unless, indeed, another
person represent him as his attorney, having authority from him for that
purpose.
3. In the criminal law, presence is actual or constructive. When a
larceny is committed in a house by two men, united in the same design, and
one of them goes into the house, arid commits the crime, while the other is
on the outside watching to prevent a surprise, the former is actually, an
the latter constructively, present.
4. It is a rule in the civil law, that he who is incapable of giving
his 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
considered present. Dig. 41, 2, 1, 3. And so, if insensible; 1 Dougl. 241; 4
Bro. P. R. 71; 3 Russ. 441; or if the act were done secretly so that he knew
nothing of it. 1 P. Wms. 740.
5. The English statute of fraud, Sec. 5, directs that all devises and
bequests of any lands or tenements shall be attested or subscribed in the
presence of said devisor. Under this statute it has been decided that an
actual 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 into 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.
Bro. Ch. C. 98; see 2 Curt. R. 320; 2 Salk. 688; 3 Russ. R. 441; 1 Maule &
Selw. 294; 2 Car.& P. 491 2 Curt. R. 331. Vide Constructive.