delivered the opinion of the court.
This cause is nowhere for the second time. (See 45 Mo. 434.) The appellant objects to the action of the court below in giving and refusing instructions.
Two of the three instructions asked by the appellant were given in the form asked, and the third the court gave upon its own motion, without any substantial variation of its terms. In regard to the action of 'the court on this subject the appellant has no shadow of ground for complaint. It is not objected that the instructions given by the court upon its own motion, or those given at the instance of the defendant, announce any untenable legal proposition; but it is urged in argument that they are inconsistent with the instructions given for the plaintiff. There is nothing here that would warrant a disturbance of the judgment, and it will accordingly be affirmed.
The motion to retax costs is sustained. At least one-half of the matter inserted in the transcript is wholly superfluous and unnecessary, and ought to have been excluded. The practice of expanding records with useless and immaterial matter is an evil that deserves attention and correction. The clerk of the Common Pleas Court is ordered to refund to the appellant $15 of the costs taxed for the transcript. (1 Wagn. Stat. 346, § 28.)