The Southern Express Company, a body corporate, exhibited its bill in the chancery court of Marshall county, against Heber Craft, asking that a judgment at law, recovered by Craft against it, might be set aside, or perpetually enjoined.

The judgment was recovered at the March term, 1866, of the Marshall county circuit court, by default.

The equity set up in the bill is, that the company had no actual notice of the pendency of the suit, and had a meritorious defense to the claim of Craft, which it had no opportunity of making in the suit at law. The averment of the bill is. that the summons in the suit at law was executed on one “T. Jones, agent for the express company,” but that Jones was not agent for the express company, which, in fact, had no notice or information of the suit. The bill further alleges that the company’s servant received, at Holly Springs, from said *514Craft, a sum of money to be transported to one J. D. Duncan, Bowling Green, Ky. That the money, as complainants are informed and believe, was not called for by Duncan, at Bowling Green. But on the fall of that place, and the retreat of the Confederate forces southward, this package, with others^ was transmitted to the office at Nashville, and that whilst there, was taken into possession by the military authorities of the United States.

It is urged by counsel for plaintiff in error, that the service on Jones was not a service on the express company, and therefore the judgment is void. Code, art. 6, p. 296, prescribes the mode of service on corporations. The writ “may be served on the president or presiding officer, the cashier, secretary, or treasurer; if no such person be found, notice may be posted at the door, or place of the business of the corporation.” When so executed, by the next succeeding section, the “defendant (corporation), shall be considered in court, and the action may proceed as actions against natural persons.” By the act of 10th February, 1860, acts, p. 422, suits against corporations shallbe commenced in the county where the principal office or place of business may be. But against railroad and telegraph companies, in the county where the cause of action arose. Process against a corporation shall be executed on the “ president or other head of the corporation, cashier, secretary, or treasurer, etc., or in such other manner as the court may direct.”

In suits against railroad and telegraph companies, in another county than where the principal office or place of business is located, process may be sent for execution to the county of the principal office or place of business. Such companies not having their principal office in this state, may appoint an agent or attorney in the several counties through which their road or line passes, to accept service. And if no such agent or attorney be appointed, the company may be sued by attachment, either for torts or debts, etc.

Art. 6 of the Code (above quoted), was further amended the 7th of December, 1863, (acts 1863, page 162), by allowing *515process against a railroad company, to be served on “ the depot agent, or any other agent, or attorney of the company, in the county where suit may be commenced.”

It will thus be seen that the most important changes made by the acts of 1860 and 1863, have reference to the venue of suits against railroad and telegraph companies : First, by the act of 1860, allowing suits in personam, against these companies in the county where the cause of action arose. The process, however, to be sent to and served in the county of the principal office, or place of business. If non-resident-corporations, however, they could appoint the agent in the several counties traversed by their roads or lines, to accept service. The further ’enlargement was made by the act of 1863, allowing service of process against a railroad company on a depot or other agent of the company in the county where the suit was brought.

Theact of 1860, declares that the process against a corporation shall be served on the president or other head of the corporation, cashier or treasurer, etc., or as the court may direct. The Southern Express Company not being a railroad or telegraph company, service on it must be in the mode just quoted. The service on “ Jones, agent,” does not necessarily show that he was either the head of the corporation, its president, cashier or treasurer. Such service would not warrant a judgment by default final against the company. If the company had entered an appearance to the suit, it would have been bound to that act, and thereby voluntarily submitted itself to the jurisdiction of the court.

In these personal actions against corporations, the safe rule is to require that the service shall show every fact to bring it within the statute. It must appear to the court that the service was made on the description of officer or agent, pointed out in the statute, in order to make the corporation amenable to the jurisdiction, and to authorize a judgment by default against it.

It was proved in the cause that Jones was not so much as the agent of the company, but the clerk of one House, who *516was the “agent” appointed by the company,-at Holly Springs. Jones states in his deposition, that he gave 110 notice of the suit to the express company. It is made reasonably clear that the company was ignorant of the pendency of the suit, and rendition of the judgment. The testimony of the cashier of the company, at Nashville, tends strongly to show a state of facts that exonerates the company from any liability to Craft, to-wit: That the package of money was turned over after the fall of Nashville, on the 17th of February, 1862, by the money clerk to the cashier. His impression was that it had been returned from Bowling Green, etc. This with other effects in the office was taken possession of by the military authorities of the United States.

The loss of- a package by a common carrier in these circumstances, by vis major, exonerates him from all responsibility to the owner. This has long been the rule of the common law.

The doctrine of the equity courts is, that a new trial will not be granted, when the party had a fair opportunity of making his defense at law, but failed to do so. Where there has been a good constructive service of the summons, but actual notice of the suit did not come to the complainant until too late to make his defense at law, a new trial will be granted if a meritorious defense be set up in the bill.

The view which we have taken of the service in this case, is that it was neither actual nor constructive. It did not bring the express company under the jurisdiction of the court, and did not authorize the rendition of any judgement whatever. In Mellons v. Newell, 7 S. & M., 399, the bill was brought for a new trial on the ground of a want of notice of the pendency of the suit. The answer denying the want of notice, and there being no proof, the bill was dismissed without prejudice, “ as there had been no trial on the merits.”

The specific prayer of relief asked in the bill is, that the judgment be perpetually enjoined. This, we think, the apellant is entitled to. But we are also of opinion, that inasmuch *517as both parties are now in court, the merits of the claim, and the defense should be passed upon by a jury.

This would be more consonant to equity, than to require Craft to bring his suit ‘de novo at law. "We are authorized to do this, under the general prayer, “ for other and further relief.” Wherefore, we reverse the decree of the chancery court, with directions to perpetuate the injunction of the judgment at law, and to award a new trial of the suit, with permission to the parties to use the depositions in this case as testimony on the trial, and such other evidence as either party may see fit to adduce.