The agreed statement of facts in this ease are precisely the same as in the ease of John Jackson v. same defendant railroad company, number 6367, in which an opinion was handed down May 12, 1896, by this court. For the reasons stated in the Jackson case the judgment' on the first count is reversed.

It was admitted that defendant was liable on the third count for the value of the hog ($3.50) and he tendered double the value ($7) to the plaintiff. This was refused because the cost, also, was not tendered. This tender was not m time, nor made in the manner required by section 2939, Revised Statutes, 1889. The judgment as to the third count is affirmed and cost of appeal taxed against appellant.

It is so ordered.