The principal inquiry necessary in this case, is concerning the meaning of the statute regulating the duties of millers and mill-owners.

On comparing the various sections of the statute, it is apparent that it is meant to apply to such mills as are in the habit of grinding for toll. After fixing the rates of toll for grinding various grains, the law provides that, “the owner or occupier of any grist-mill shall well and sufficiently grind the grain brought to his mill for that purpose, in due time, and in the order in which it shall be received;’’ saving however the right to the mill-owner to grind his own grain at all times. The statute also provides that any “miller or owner or occupant of a gristmill, who shall not well and sufficiently grind any grain as aforesaid, or not in due time as the. same shall be brought,” &o., shall be liable to five dollars damages above the actual damage.

While the law does not turn every flouring-mill into a custom-mill, it is, we think, very clearly designed to compel those persons who undertake to hold themselves out to the community as millers, grinding for the public generally, to a similar impartiality to that required of common carriers, inn - keepers, and those following such public avocations. There is as clear a duty to receive grain, when the mill is running, as there is to grind it when received. The *61duty is to grind grain brought to the mill in the order of its receipt. To allow a miller to refuse to receive it when brought, would enable him to evade the statute entirely. Whether any duty attaches when the running of the mill has been discontinued for any thing more than a temporary purpose, does not properly arise in this case. But when a mill is in running order, and in actual employment from day to day in custom work, we think the statute applies, and, forbids any partiality.

The declaration is, we think, entirely clear and certain, and conforms fully to the sense of the statute.

The conversation between the plaintiff and the miller was a part of the res gesteo: as such it was properly admitted.

As this is a civil private action, and the liability created by the statute is to private damages, we think it makes no difference whether the refusal to receive the grain comes from one or all of the owners, or from the person in charge. They are bound to see that every customer is properly treated. Their case is like that of a vessel - owner or other common carrier, who is responsible for his agents as well as for his own acts. Mill-owners would otherwise find it very easy to escape any liability whatever.

Let it be certified to the Circuit Court for the county of Kalamazoo, that the declaration is sufficient; that the statute applies to refusal to receive grain, as well as to refusal or neglect to grind it, and that when a ' mill is running and is used for general custom work, the miller can not refuse to receive the grain of a particular person. Also that the conversation proved was properly received in evidence. The other questions we decline answering.