
    31876.
    Strickland v. Arnall, Governor.
   Townsend, J.

A surety on a criminal appearance bond is obligated as on an original undertaking to have the principal present in court in accordance with the condition of the bond, and where in a forfeiture proceeding such surety is served, although the principal is not served, the surety cannot go behind the judgment rendered against him, and by affidavit of illegality set up defenses that existed before the judgment was rendered. See Fryer v. State, 142 Ga. 81 (82 S. E. 497); Code § 39-1009; Harbig v. Freund & Co., 69 Ga. 180. Accordingly, since all the defenses' set up in the illegality existed before judgment, and since the surety was served and could have had his day in court, the judgment of the trial court dismissing the affidavit of illegality, on motion of the solicitor-general, was without error.

Decided February 4, 1948.

Judgment affirmed.

MacIntyre, P. J., and Gardner, J., concur.

Duke Davis, for plaintiff in error.

L. M. Wyatt, Solicitor-General, contra.  