Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
This is an appeal from a judgment against the defendants on a recognizance of bail, in which one Jose Gonzalez was principal and Peerless Insurance Company was surety. Only Peerless appeals.
On July 8, 1959 Gonzalez was taken into custody on a concealed weapon charge (N.J.S. 2 A:151-41), and bail in the amount of $2,500 was set by the Municipal Court of Paterson. Gonzalez, as principal, and Peerless, as surety, executed a recognizance of bail, and defendant was released on July 11, 1959. Inadvertently, approval of the bailpiece was not endorsed thereon. This irregularity was discovered
on November 6, 1959 when defendant was arraigned before the Passaic County Court. Thereupon, the County Court judge remanded defendant to custody pending rectification of the formal defect in the bailpiece. The recognizance was approved and endorsed by the magistrate, and on November 10, 1959 defendant was again released. When the case was called for trial on March 8, 1960 Gonzalez did not appear and the bail was declared forfeited. Thereafter, the court granted the State's motion for judgment made pursuant to R.R. 3:9-7. Hence this appeal.
It appears from the judgment that the defense to the action below was based entirely on the claim that the failure of the magistrate to endorse his approval of the instrument nullified appellant's obligation thereon. The County Court held:
"* * * that the recognizance was proper and legal as a voluntary bond despite omission of approval by the Magistrate, and that it was not materially changed or altered, and that under all the circumstances the said recognizance was in full force and effect, valid and legal; * * *"
This appeal originally came on for oral argument on June 19 of this year. Appellant, in its brief, at that time stated that the only question involved on appeal was:
"Did the defective bail piece constitute a discharge of the bail?"
For reasons which are inapposite to the proceeding in its present stage, we concluded that the appellant's brief, in form and substance, was inadequate to enable us to intelligently determine the issue presented. We ordered the briefs suppressed and directed that a proper brief be filed, granting leave to the State to answer it.
In the brief which has since been filed by the appellant it is stated that the sole question involved is:
"Did the incarceration of the principal upon discovery of the omission of approval by the Magistrate operate as a surrender of the principal and ...