¶1The complaint made in this indictment against the defendants is, that, being selectmen of Salem, they did not remove the school-house in district number seven, in that town, to the spot designated by the committee in their report of December 6,1847.
¶2That report shows, that the land fixed upon by the committee for the new site of the school-house then belonged to William Thom; and there are no allegations in the indictment, which show that the district, by purchase, by appraisement under the statute, or in any other way, had acquired the right to place the school-house on that spot. Nor does the indictment show that it was through the neglect or default of the defendants, that the district had failed to obtain that right. There is no allegation *187of any petition to the defendants, requesting them to lay out the lot and appraise the damages; and without such petition they had no authority under statute to lay out and appraise. Rev. Statl ch. 71, § 7.
¶3The defendants could not place the school-house upon the land of William Thom, without committing a trespass on him. The indictment does not show them to have been guilty of any neglect of their official duty, and must be quashed.