The case was left to the jury with instructions that if the injury was due to negligence of the defendant in sending men to work above the plaintiff, as a contributing cause, the defendant was liable, but not if it was due only to the negligence of fellow-servants in their way of performing their work. The question also was left to the jury whether the disease was the direct consequence of the blow. The case was begun in the state court and was removed to the Circuit Court, and is brought here, solely on the ground that the plaintiff in error has a charter from the United States. But for that accident, which has no bearing upon the questions raised, the case would stop with the Circuit Court of Appeals. Under such circumstances we go no further than to inquire whether plain error is made out. Chicago Junction Railway Co. v. King, 222 U. S. 222. We find nothing that requires us to reverse the judgment. It was open to the jury to find that the usual duty to take reasonable care to furnish a safe place to the plaintiff in his work remained. They well might be of opinion that the general nature of the things to be done gave no notice to the plaintiff that he was asked to take a necessary risk. At the same time they were warranted in saying that if the defendant saw fit to do the work above and below at the same time it did so with notice of the danger to those underneath and took chances that could not be attributed wholly to the hand through which the harm happened. Even if Howell knew that repairs were going on overhead that did not necessarily put him on an equality with his employer, and require a ruling that he took the risk. Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249. The plaintiff was injured on March 3, 1908. There was ample evidence that the blow occasioned the development of his disease, although it was not discovered to be the Potts disease, as it is called, for over a year. But it is argued that if such a disease is due to the presence of tubercular germs in a man's system before the accident the defendant ought not to be required to pay more than it would to a normal man. On this point also we are of opinion that the jury were warranted in finding that the disease was the direct result of the injury, as they were required to, by the very conservative instructions to them, before holding the defendant to answer for it. Crane Elevator Co. v. Lippert, 63 Fed. Rep. 942. 11 C. C. A. 521. Spade v. Lynn & Boston R. R. Co., 172 Massachusetts, 488, 491. Smith v. London & South Western Ry. Co., L. R. 6 C. P. 14, 21. Judgment affirmed. B. ALTMAN & CO. v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 208. Argued April 25, 26, 1912.-Decided May 13, 1912. This court will entertain a direct review of the judgment of the Circuit Court under § 5 of the Circuit Court of Appeals Act of 1891, in a revenue case which involves not only questions of classification and amount of duty thereunder, but also questions as to the constitutionality of a law of the United States or the validity or construction of a treaty under its authority. Where the importer throughout has insisted that the merchandise is dutiable at the rate fixed by a reciprocal agreement entered into by the United States under § 3 of the Tariff Act of 1897, there is a direct appeal to this court under § 5 of the Circuit Court of Appeals Act of 1891, provided such agreement is a treaty. Generally a treaty is a compact between two or more independent nations with a view to the public welfare, but quare whether under the provisions of the Constitution of the United States an agreement is a treaty unless made by the President and ratified by two-thirds of the Senate. Argument for Plaintiff in Error. 224 U. S. In construing the Circuit Court of Appeals Act of 1891, the intent of Congress will be considered, and it was manifestly to permit rights and obligations resting on international compacts and their construction to be passed on by this court. A reciprocal agreement between the United States and a foreign nation entered into and proclaimed by the President under authority of § 3 of the Tariff Act of 1897 is a treaty within the meaning of § 5 of the Circuit Court of Appeals Act. A term used in a reciprocal agreement made under § 3 of the Tariff Act of 1897 will be construed in the same way that such term is defined in the act itself; and so held that the word "statuary" used in the reciprocal agreement of May 30, 1898, with France of,30 Stat. 1774, includes only such statuary as is cut, carved, or otherwise wrought by hand as the work of a sculptor. 172 Fed. Rep. 161, affirmed. THE facts, which involve the construction of the tariff acts and of the reciprocal agreement with France of May 30, 1898, are stated in the opinion. Mr. Henry J. Webster, with whom Mr. John K. Maxwell and Mr. Howard T. Walden were on the brief, for plaintiff in error: The so-called agreement with France is a treaty. The President and Senate undoubtedly have complete control of the making of treaties, so long as they refuse to join with the House of Representatives in making a treaty by act of Congress. There is a practical limitation to their power of carrying treaties into execution in cases where an act of Congress is necessary for that purpose, but that is a separate matter from their power to make treaties, which is unqualified. The House, therefore, has no right to demand any agency or share in the making of treaties, but has only a right to demand a share in the legislation, if any be necessary, to make them effective. If, however, the President and Senate voluntarily join with the House in the enactment of a law which authorizes the making of a treaty, and provides for its taking effect upon proclamation by the President, such action 224 U.S. Argument for Plaintiff in Error. includes the approval of the President, the advice and consent of the Senate, and the legislation required to put it into execution. The power to pass a law authorizing the President to make a treaty reducing rates of duty in consideration of reciprocal reductions by a foreign nation, is an exercise of the power conferred by Art. I, §8, to make all laws necessary and proper for carrying into execution the foregoing powers. Legal Tender Cases, 12 Wall. 457, 533, 538; quoting from Fisher v. Blight, 2 Cranch, 358. The mere designation of the instrument by another name, even by Congress and the President, does not prevent its being a treaty, if it is such in substance. Pollock v. Farmers' L. & T. Co., 157 U. S. 429, quoted with approval in Fairbank v. United States, 181 U. S. 283. Treaties have quite frequently been denominated conventions, but that does not change their nature as treaties. Bartram v. Robertson, 122 U. S. 116, 118. If a treaty remains a treaty when called a convention, it would seem equally to remain a treaty when called an agreement. Congress has referred to the Hawaiian treaty in two instances as a convention, and in two others as a treaty. Act Aug. 15, 1875, 19 Stat. 200; Act Mar. 3, 1891, 26 Stat. 844; Act Aug. 27, 1894, par. 1822, 28 Stat. 521; Act July 24, 1897, par. 209, 30 Stat. 168. In the general sense and without special reference to the Constitution and laws of the United States, the socalled commercial agreement with France is unquestionably a treaty. There is no decided case involving directly the question whether a certain instrument was a treaty or not. As to what a treaty is, see Foster v. Neilson, 2 Pet. 253, 314; Holmes v. Jennison, 14 Pet. 540; United States v. Rauscher, 119 U. S. 407; Whitney v. Robertson, 124 U. S. 190. Argument for Plaintiff in Error. 224 U. S. This contract with France was between two independent nations; it was a formal contract, written in both French and English, signed by both parties and duly proclaimed by the President and also by the Secretary of the Treasury; it was upon consideration-a promise for a promise; it was for a considerable time and furnished a rule for almost daily action during its continuance; it was for the public welfare, and made in the name of the State, and was actually executed for a period of eleven years, its termination having been directed by §4, act of August 5th, 1909, 36 Stat. 83. In the Constitution and laws of the United States, the word "treaty" has no special meaning different from the general definition. Hauenstein v. Lynham, 100 U. S. 483, 489. The reason for vesting the power to make treaties in the President and Senate appears to have been simply to secure secrecy and despatch, which, it was recognized, were often necessary, and except for this consideration, the power would doubtless have been expressly vested in Congress as a whole. 2 Madison, Journal of Const. Conv. of 1787, edited by Hunt, 327; Chas. Pinckney, 4 Elliott's Debates in State Conventions on Adoption of Federal Constitution, 253–267. As to executive and legislative construction, see Annals of Congress, 4th Cong., 1st Sess., pp. 759, 771. See discussion in 1816; the question whether legislation was necessary to carry a certain treaty into effect, the House proposing to pass an act to carry a treaty into effect, to which the Senate disagreed; Annals of Congress, 14th Cong., 1st Sess., pp. 1022, 1057. For legislative interpretation, see law enacted by Congress in 1872 for making postal arrangements, 17 Stat. 304, now § 398, Rev. Stat., in pursuance of which the treaty of Berne was entered into October 9, 1874, 19 Stat. 577, and was ratified by the Postmaster General by and |