This is certainly a case of entirely new impression, and it is one grave objection to the plaintiff’s recovery, that no similar action has ever been sustained in this commonwealth. It is a suit against ten or twelve persons; and it is conceded that, if they are liable, forty or fifty more are jointly liable with them, composing a lodge of the Independent Order of Odd Fellows. So many considerations seem to be opened by the discussion, that we have neither time nor disposition to go at large into the details. It is conceded that the lodge is a voluntary association not incorporated, and that if liable at all, the members of it are liable in their individual capacities, as joint promisors. But this lodge itself, this aggregation of individuals, is but the component part of another aggregation of individuals, denominated the “ Grand Lodge,” to whom, by the same voluntary agreement, the whole of the funds of the particular and subordinate lodge may at any moment, upon various contingencies, be forfeited and appropriated.
But supposing the particular lodge stood alone, still the difficulty presents itself, of a suit for thirty dollars, upon the joint promise of, say sixty persons, constituting a voluntary association of individuals, perpetually changing by the retire *446ment of members and the admission of others. Shall the same sixty individuals, who constituted the lodge when the implied promise took effect, be sued, though they have ceased to be members ? If not, how can the residue be held upon a joint promise ? Or shall those be sued who were not members when the implied promise took effect, but who have become such when the action is brought? If so, what joint promise of those who have since come in can be proved by the evidence ?
But without encountering these difficulties, we think there are two plain legal grounds upon which it must be held that this action cannot be maintained.
1. The constitution and by-laws of the lodge, treating them as articles of a voluntary association, do not amount to a promise to each member by all the rest, to pay him anything. The stipulation in the by-laws is, that, on the death of each member, there shall be allowed from the lodge a sum not less than thirty dollars, to defray the expense of burial, to be paid without delay to the deceased’s nearest of kin. The payment is for that purpose. It is, if any promise at all, a promise by each member to contribute, by periodical and other payments, towards a certain fund, for all the purposes eontemtemplated by the association, including money to be paid promptly for the expenses of burial, to be done usually before letters testamentary, in case of a will, or letters of administration, in case of intestacy, can be regularly issued. In other words, the promise of each member is to pay money to the lodge; and the lodge, not being incorporated, can maintain no suit. If it creates any right which can be recognized by law, it is an equitable right only to a share in a common fund, raised either for purposes purely charitable, or for their joint benefit, and can only be enforced in equity. And if there were any ground for such equitable relief, as in ease of partners in a joint fund, raised for a special purpose, of which we give no intimation, such equitable relief could be sought only by a member or his legal representative.
2. But supposing this stipulation in the constitution anc by-laws of the lodge, to amount to an express promise to pa) *447thirty dollars upon a certain contingency, there is no consideration for such promise moving from the plaintiff to the defendants, or from any person acting in privity with him or acting for his use or benefit, or with an intent and purpose t( obtain a benefit to the plaintiff. There is no ground to infer, from the facts agreed, that the son, who was a member of the lodge, in paying his contributions thereto, had any purpose of obtaining money from the lodge, in case of his death, for the use of his father, or other next of kin, for his own benefit; to whomsoever it might be paid, under these provisions, it was a naked trust, for defraying the charges of his burial. It is, therefore, not at all analogous to the case, where A owes B and B owes C, and in consideration that B will release A, he promises to pay C. Such promise is valid, and C may sue A upon it. The reason is, that although the consideration for A’s promise to C, does not move from C, it moves from A for C’s use and benefit.
Where a father, desirous of making a provision for his daughter, conveys property to A B, in consideration of which A B promises to give a certain sum to the daughter, she has a right of action, because the consideration moved from one acting for her use and benefit. The cases, therefore, of Hall v. Marston, 17 Mass. 575; Carnegie v. Morrison, 2 Met. 381; and others of that class, are not applicable.
Without considering various other questions suggested by the case, the court are of opinion, that upon the facts agreed, this action cannot be maintained. . Plaintiff nonsuit.