delivered the opinion of the Court.
This cause has been ingeniously argued by the counsel on both sides ; but the ground on which we place our decision, renders a particular examination of the authorities they have cited, and the arguments they have urged, in our opinion unnecessary. The principle is a very familiar one, that in deciding upon demurrer, the court will trace back the pleadings, and ascertain which party has committed the first fault. We need only examine the plea and declaration. The plaintiffs declare on a judgment which they allege that they recovered against the defendant, in the superior court of the State of Georgia. The defendant pleads in abatement that it was recovered against him and Abijah Fisk jointly, and not against him alone, and that said Fisk is still living at Boston, in the Commonwealth of Massachusetts and of course ought to have been *436named in the writ and declaration. Is this a good plea ? A plea must be good when pleaded ; but if then bad, and must have been so pronounced, had it been demurred to, it is. equally bad and must be pronounced so, though the demurrer be to the last stage in the pleadings. In U. States v. Arthur, 5 Crunch, 257, Marshall C. J. says, “ the want of oyer is a fatal defect in the plea ; and the court cannot look to any subsequent proceedings ; the plea was bad when pleaded.” Without looking to any of-the facts disclosed in the rejoinder, and considering the judgment as now remaining in the same form in which it was entered, against Williams and Fisk jointly, does the plea contain matter sufficient in law to abate the writ ? Had the defendant pleaded in bar that there was no such record as that on which the plaintiffs had declared, a very different question would have been presented, which the plaintiffs mnst have answered. The principle of law is, that a plea in abatement is to be construed strictly. The plea states that Fish should have Leen named in the writ and declaration as one of the judgment debtors. So he should have been in order to prevent the plea of nul tiel record ; but, as against the plea in abatement, the insertion of the name of Fish was of no importance. Suppose it had been so inserted, the writ could not have legally been served upon him, because he was an inhabitant of Massachusetts at that time ; and it is not averred in the plea that he had any property, agent or attorney within this State. The plea states that the plaintiffs’ judgment is a joint one against him and Fish. Be it so. How can the plaintiffs commence an action against Williams and Fisk jointly, they being inhabitants' of different states ? This is not a new question. In Tappan v. Bruer, 5 Mass. 193. Parsons C. J. in delivering the opinion of the court observes : “ It has been an immemorial practice, in the service of a writ sued on contract against two or more defendants, if some of them are without the jurisdiction of the Commonwealth, so that their bodies cannot be arrested, and having no usual place of abode within the State at which a summons may be left, to cause the writ to be served on the defendants within the State, and to proceed against them for breach of the contract hy all *437the defendants. This practice originated from necessity, as no mode of service is provided by our laws upon a debtor without the state, who has no place of abode or property within it.” In the case of Dennett v. Chick, 2 Greenl. 191, this court has adopted the same principle in its full extent and acted upon it, and we are perfectly satisfied with that decision. In our opinion, these cases settle the present cause, assuming, as the defendant in his plea assumes, that the judgment is still a joint one against the defendant and Fisk, then, according to the doctrine relied on by his counsel, no action on that judgment can ever be maintained, because the judgment debtors choose to live in different states, and are not amenable to the same tribunal. The plea, to use technical language, does not give the plaintiffs a better writ. If in the present action the plaintiffs had declared upon a judgment alleged to have been recovered against Williams and Fisk jointly, and the defendant had pleaded in abatement the non-joinder of the two judgment debtors as defendants and the plea had contained the same averment it does now as to the life and place of habitancy of Fisk, it must have been adjudged insufficient, according to the foregoing decisions ; and surely it is not of a different character, merely because it discloses the existence of a fact, which, if alleged in the declaration, would have furnished no objection to the maintenance of the action. In thus deciding the insufficiency of the plea, we at the same time decide the declaration to he good. The demurrer is overruled, and a respondeat ouster awarded.