If it be assumed that the plaintiffs had no right to levy upon the property in question, the levy, while an abuse of process, would not operate as a defence to the sureties on the bond. See Jennings v. Wall, 217 Mass. 278, 282. In any event, the levy on the property in question cannot be held to operate as a satisfaction of the judgment so as to discharge the sureties.

Butler v. Hildreth, 5 Met. 49, 51. Doucette v. Baldwin, 194 Mass. 131, 135. Furber v. Dane, 204 Mass. 412, 415. Brighton Packing Co. v. Butchers' Slaughtering Melting Association, 211 Mass. 398, 402. Jennings v. Wall, 217 Mass. 278, 281. Boston Albany Railroad v. Reardon, 226 Mass. 286, 291. Augello v. Hanover Trust Co. 253 Mass. 160, 167. Sheehan v. Commercial Travelers Mutual Accident Association, 283 Mass. 543, 551. Cleaveland v. Malden Savings Bank, 291 Mass. 295, 298. Schiller v. Metropolitan Life Ins. Co. 295 Mass. 169, 175. The decree ordered, in so far as it would grant relief under the fifth prayer of the bill, enjoining the defendants "from manufacturing, marketing, selling, leasing, renting or in any way exploiting any invention, device, improvement, machine or attachment for setting the edges or breasts of heels for shoes," was too broad and was beyond the scope of the bill.

. . . And it is for the plaintiff to prove how much is thus due." See also Nelson v. Sanderson, 285 Mass. 583; Jennings v. Wall, 217 Mass. 278, 284, 285; Harmon v. Weston, 215 Mass. 242, 246, 247. In Waldo v. Fobes, 1 Mass. 10, although the statute then in effect (St. 1798, c. 77, § 6) did not contain the words "equity and good conscience," nevertheless the court held that after judgment for the penal sum of a bond the assessment by the court of the amount for which execution was to be issued was a proceeding in equity.

In the circumstances, the plaintiff was not precluded from insisting upon this contention and the defendant was not misled to his harm by this remark of the plaintiff's counsel. It had no effect on the course of the trial. Jennings v. Wall, 217 Mass. 278, 281. Corbett v. Boston Maine Railroad, 219 Mass. 351. Commonwealth v. Retkovitz, 222 Mass. 245. Rollins v. Bay View Auto Parts Co. 239 Mass. 414. There was no direct testimony that the plaintiff at the time of her second treatment was exposed to the actinic rays for more than three and one-half minutes, or that an exposure for that period was unusual or improper if light treatment should have been administered.

Therefore, apart from affirmative defences, hereinafter considered, the liability of the sureties had matured before this action was brought against them and the plaintiffs were entitled to the directed verdict. Jennings v. Wall, 217 Mass. 278, 284. The defendants contend, however, that on the evidence facts could have been found showing (a) that the judgment was not conclusive as to them or (b) that they were released from liability on the bond.

Accordingly they should have been excluded. Pye v. Perry, 217 Mass. 68, 71. Jennings v. Wall, 217 Mass. 278, 282. National Wholesale Grocery Co. Inc. v. Mann, 251 Mass. 238. There is no evidence that Swig was held out by the bank as its agent to act in a transaction of this kind, and therefore he could not be found to have been clothed with apparent authority to bind the defendant.

That was a distinct contract from the one between the plaintiff and the defendant. Moss v. Old Colony Trust Co. 246 Mass. 139, 151, 152. This letter of the bank was not acknowledged by the defendant, who apparently paid no attention to it. He was not bound by it in any particular. His rights are not affected by it. He was under no legal obligation to answer it. Jennings v. Wall, 217 Mass. 278, 282. Moreover, this letter of the bank antedated the delivery by the plaintiff of the contract between the parties hereto and could not affect its terms.

This petition, for a cause occurring since the previous case, is not barred by the former decision. See Jennings v. Wall, 217 Mass. 278, 280; McCarthy v. William H. Wood Lumber Co. 219 Mass. 566, 567; Hanzes v. Flavio, 234 Mass. 320. The libel for divorce, which was pending when the case at bar was heard, was admitted in evidence on the question of desertion.

Frost v. Thompson, 219 Mass. 360, 369. Jennings v. Wall, 217 Mass. 278. Certiorari is a proper remedy to redress the wrongs of which complaint here is made.

It is well settled that self-serving statements are incompetent and failure to reply to them does not amount to an admission by the persons to whom they are addressed of the facts stated therein. Callahan v. Goldman, 216 Mass. 234, 237, 238. Jennings v. Wall, 217 Mass. 278, 282. Mahoney v. Philpot, 219 Mass. 480, 482. Kumin v. Fine, 229 Mass. 75, and cases cited. The exception to the characterization by the judge in his charge of the paper enclosed in the letter above referred to as a receipt, must be overruled.