Marbury v. Pace ( 1880 )

Manning, C. J.

The plaintiffs apply for a writ of certiorari upon a suggestion of the diminution of the record. The missing document is the copy of the judgment, a revival of which is sought. The entry in the note of evidence is, “a copy of the suit No. 548 of the Twelfth District Court of the Parish of Ouachita, entitled Wm. Marbury and others v. James F. Pace, filed April 18, 1867, embracing the petition, confession of judgment therein, the notes annexed with the indorsements thereon, all the minutes of the Twelfth District Court rendered and of record in said case in the minute book of said court.”

This is one of those instances of a party nearly defeating his object by too minute particularity. If there were nothing in the note of evidence but the mention of the suit, describing it by number and name of parties, or mention of the record of the suit having been offered in evidence with like description, there could be no doubt that the whole suit was offered, and every part thereof would be included in such description. But when a party offers a copy of a suit in evidence and then proceeds to specify and designate certain parts of the suit or record, he is in danger of the application of the rule — expressio unius exclusio alterius. In this case the plaintiffs offered as their testimony the suit, embracing certain designated parts thereof. The whole suit was offered, and of course the judgment was included, and the concluding sentences that the record thus offered should embrace parts of it was surplusage. The record embraced these parts necessarily. They were part of it, and we are not prepared to say that the expression or mention of these parts was occasioned in any other way than by a painful minuteness of detail.

Let the writ of certiorari issue as prayed.