¶1It is said that the-defendant .was not legally chosen collector, because the record does not state, that he was chosen by ballot according to the provisions of the first article of the by-laws.
¶2The presumption of law is, that he was legally chosen, when there is nothing in the record to show, that he was not. Mussey v. White, 3 Greenl. 290.
¶3When the overplus was tendered to the owner of the goods distrained, there is no proof made by the return of the collect- or, or by the other testimony introduced, that it was done “ with an" account in writing of the sale and charges.”
¶4This is required by the provisions of the statute, chap. 14, sect. 67. The collector cannot make out a justification without showing, that he has complied with the provisions of the statute. Failing to do so, he becomes a trespasser ab initio. Smith v. Gates, 21 Pick. 55.
¶5It is not necessary to notice the other points presented.
¶6Defendant defaulted.