delivered the opinion of this court.

This is an appeal from a specific action of the Circuit court for Baltimore city. On the 27th day of March 1857, the court *352declared, in its opinion, that Hiram ICetchum was entitled “to have and recover from the defendants, Benson and Jewett, with preference and without regard to any claim or alleged right of the defendant, Tracy, one-fourth part of the net profits arising from sales of all cargoes of guano, if any such there' were, obtained b}7 the said Benson and Jewett, from the Lobos Islands, in vessels chartered, or caused to be chartered, by said Benson and Jewett, for the purposes, and within the pe-< riod set forth in their contract with the said complainant, proven under the commission in these proceedings, and marked complainant’s exhibit, No. 5, as well as one-fourth part of the net profits of the voyages of those of the said vessels, whereof the charter-parties were transferred to P. Barreda & Brother, the agents of the Peruvian government, to bring guano to the United States from the Chincha Islands, and which did actually bring such guano under such transferred charters, and earn advance freight thereupon, under such transfer, in pursuance of the agreement of said Benson with P. Barreda & Brother,proved under the commission aforesaid, and a copy whereof thereto attached, is marked complainant’s exhibit, No. 1, deducting first, however, from said proceeds of sale, if any, and said profits or earnings, all reasonable and proper expenses1 and disbursements of said Benson and Jewett,!’ &c., &c., “the alleged claim of the said defendant, Tracy, being no part of said expenses, for the purposes of said deduction.” The opinion proceeds to say, “that the fund now invested under the order of this court,” is liable to the payment of the claim of the complainant when its amount is ascertained, and directs the auditor to state an account and apply the fund agreeably to the instructions given.

The fund in court arose from freights on importations of guano. Without going into a long detail of the facts which led to the enterprise, or a full statement of the incidents which, in its various phases, characterized it, we content ourselves with an examination of the basis on which rests the claim of the complainant, and the decree of the court allowing it, and top that end subordinating, if he have any, the claim of the appellant, Tracy, to it.

*353In the argument of the cause much was said, and ably said, pro and con, in regard to the jurisdiction of a court of equity in a case like the present, We entertain no doubt that the jurisdiction is complete, and that the authorities are full up to die question, but, inasmuch as the view we have of the merits of the case makes the question of jurisdiction unimportant, we forego ail citation of cases to show it has properly attached. For, if the complainant has not made out his case, the question of jurisdiction is of no consequence. We are clearly of opinion, that he has wholly failed to prove any claim whatever to any part of the fund. His pretensions, whatever they may be, rest entirely on the paper signed by Jewett and Benson, and dated June 30th 1852, and the paper signed by the same parties, dated the 24th day of May 1853, and the schedule thereto attached.

The first of these papers recites that Benson and Jewett were doing business in the city of New York, and had caused to be chartered a number of vessels to proceed to the Islands of Lobos, in the Pacific ocean, to obtain cargoes of guano, to be disposed of as an article of commerce, and that they intended to become interested in other vessels for the same purpose during the ensuing six months. After this recital it proceeds to say that i£in consideration of valuable services rendered us (Benson and Jewett) in respect to the obtaining access to and procuring said guano by Hiram Ketchum, of the city of New York, we do hereby jointly and severally promise said Hiram Ketchum, to pay him a sum or sums of money equal to the quarter part of our net profits on each and every ship, (deducting, first, therefrom the expenses, commissions, <fcc., for doing the business,) as aforesaid chartered and hereafter to be chartered by us, or either of us, during the ensuing six months,” &e., &c.

The other paper—the one of date the 24th day of May 1853—is a memorandum of agreement between Jewett and Benson to define their mutual and respective interests in the guano expedition, and their relative rights as co-partners in all the charters of vessels, the arrangement between the government of the United States and Peru, the moneys received or *354to be received on account thereof, and the liabilities therein. This memorandum ascertains the interests and liabilities of the parties to be equal, and that “the liabilities in an annexed schedule stated, are to be paid as therein provided, but no payment of any sum of money whatever shall be made by either party without consent of the other” Among the statements’ in the schedule is the following:

“C. Amount payable to H. K., as per agreement, and payable whenever Benson and Jewett shall agree to pay the same, each advancing his half.”

On the 8th day of January 1853, Benson entered into am agreement with F. Barreda & Bro., to endorse to them the charter-parties to certain vessels, to receive therefor certain specified freights, provided that the captains of the vessels agree to load at the Chincha Islands instead of the Lobos Islands.

The fund invested by order of court, and out of whichKetchum asks to be paid, grows out of these freights, and was brought, under the direction of the court, in a suit instituted by the defendant, Tracy, who claimed to have a lien on the same for services rendered to Benson.

The projected expeditions to the Lobos Islands were under the-sanction of the State Department, which, as appears from certain letters of Mr. Webster, the then Secretary of State, was of the opinion that those islands did not constitute any part of the territory of Peru, an opinion afterwards recanted, and followed by an official recognition, by our Government, of the right of Peru’ to those islands. In consequence of an arrangement of our government with the minister of Peru, as alleged by Tracy brought about through his instrumentality, the charter-parties of Benson-, to a certain extent, were recognized on certain conditions, which were to be effected through an agreement to be made with F. Barreda <fc Brothers, the agents of the Peruvian government, for the disposition of guano in this country. The agreement of Benson, to which we have referred, with that house, is the one which consummated the understanding.

The services, for which the complainant was to be compensated, were rendered, to use the language of the paper of the *35530th of Juno 1852, “in respect to the obtaining access to and procuring said guano (that is, from the Lobos Islands,) by Hiram Ketchum."

The whole proof in the cause shows, that in point of fact access was not had to those islands, nor guano obtained from them. The whole thing was founded on a delusion, namely, that any citizen of the United States has the right to visit and procure guano from those islands, without the permission of any one, when these islands were, and are, as much a part of the territory of Peru as its capital. There was a total failure of consideration, and, therefore, the complainant cannot, in justice, found a claim for services wholly nugatory and valueless. Nor can he maintain a lien on the fund in court, unless he were a partner in the charter-parties transferred to F. Barreda <fc Brother, of the freights of which it originated. He was not to receive one-fourth of the net profits, which would have made him a partner, but a sum of money “equal to the quarter part of the net profits,” which did not constitute him one. He was in nowise liable for any losses or engagements of the concern.

Entertaining these views, we will dismiss the bill of the complainant. We avoid expressing an opinion on the validity of the claim of Tracy. He has not fully exhibited his case in proof. When he shall have done so, in the suit brought by himself, now pending, the Circuit court will be in a condition more thoroughly to pass upon it.

The case of Purviance and Dorsey, Adm'r of Dorsey, vs. Barton's Adm'r de bonis non, 2 Gill & Johnson, 311, shows, that the decree pro confesso does not preclude Tracy from the benefit of having his testimony considered before final decree.

Decree reversed with costs and bill dismissed.