Two points are urged for the reversal of this decree : 1st. That the- heirs of James Caldwell, the original defendant, having deceased, since the suit was brought, the affidavit on which the publication order against his heirs was made, is insufficient. The averment in the bill is that he is a non-resident. The affidavit states that he was a resident of South Carolina, “ and that the names of his heirs at law are *746unknown,” etc. Art. 35, Code of 1857, p. 546, authorizes the unknown heirs of a deceased person when necessary parties defendant, to be made such by the description “the unknown heirs of the deceased,” and upon affidavit that their names are unknown, publication shall be made as in case of absent defendant. The affidavit meets the terms of the law. Such proceeding seems to be authorized on the condition that the “heirs are unknown,” without reference to their residence, their presence or absence from the state. The second objection is, that the personal representative of Caldwell is a necessary party, and if none has been appointed, this suit ought to be arrested until one is appointed. The general rule is, as claimed by the counsel for appellant, that in suits of this character, the administrator or executor is a proper defendant, because the personal estate is primarily liable for the debt, and the heir or devisee is entitled to relief and indemnity out of it. Smith v. Hibbard, 2 Dick, 730; Townsend v. Champernonne, 9 Price, 130; Story’s Eq. Pl., § 177. The principle has been several times recognized in this court. But should a rule founded in a good reason, and having for its foundation a substantive object, be so inexorable, as when the reason of it does not apply, and there is no personal estate nor personal rep-resentive, be pushed to the extent of obstructing substantial justice ? The averment is that Caldwell, the deceased, was a non-resident, that he had no estate or property here. The intent of the rule is, that, inasmuch as the personal assets are first liable, therefore the legal representative ¡must be a defendant in order that he may contest the debt, and that the decree may bind the estate which he represents. But when the deceased was resident abroad, and had no personal estate within the jurisdiction, the necessity of a personal representative is greatly weakened. The complainant is bound to prove his debt and his lien as against the heirs. They have their day in court, and may contest the complainant’s demand, in all its length. If there *747are no personal assets, there can be no decree over for their indemnity.

In the circumstances of this case we think the complainant may proceed alone against the heirs. In principle it is analogous to that class of cases where the distributee has recovered in chancery the personal property on the allegation that the debts have been paid, or there are no creditors, and there is no legal representative through whom their rights may be vindicated.

One distributee may sue, in his own name, for his distributive share, if it is charged in the bill that the other next of kin are unknown. Story’s Eq. Pl., § 90. So the court will proceed to decree, against the heir, if there be no personal representative in existence, if it can be done without prejudice. Story’s Eq. Pl., § 91. These exceptions to the general rule have been acted upon, in order to prevent a failure of justice. As we have seen, no possible prejudice can ensue to heirs in this case, because there is no personal estate, and therefore no other fund except the land out of which the debt can be paid, to stand ahead of their liability, and protect the land.

Decree affirmed.