48 Nw. U. L. Rev. 671 (1953-1954)
Counterclaim against Counterclaim

handle is hein.journals/illlr48 and id is 683 raw text is: Northwestern University
LAW REVIEW
VOLUME 48          JANUARY-FEBRUARY, 1954                NUMBER 6
Counterclaim Against Counterclaim
Robert Wyness Millar*
A     SOMEWHAT unlooked for developmentunderthe FederalRules
of Civil Procedure has been emergence of the question whether
the Rules countenance the assertion of a counterclaim against a
counterclaim. The question has recently presented itself in a num-
ber of district court decisions which are cited below.' In two of
these cases it was suggested that the better, pleading would have
been to amend the complaint, but all held that the right to interpose
a counterclaim appertained to the plaintiff as well as to the defend-
ant. And properly so, for cases are bound to occur where the
alternative of amending the complaint would be an awkward expe-
dient and could hardly be admitted without infringing elementary
principles of logic, if not of justice.2 The decisions in question will
be more closely looked at in the sequel, but unless overturned by
higher authority, they establish as the rule of federal procedure
that a counterclaim against a counterclaim is an authorized course
of proceeding.
Quite apart from the particular manner in which it arises, the
question is an interesting one, not only as a problem of procedural
mechanism, but also from the standpoint of procedural history. The
counterclaim itself, which is known in the civil-law jurisdictions as
reconvention, goes back to the mutuae petitiones of the Roman
law. But the question before us first manifests itself in the Romano-
canonical procedure of the Middle Ages. The canon law pronounced
*Emeritus Professor of Law in Northwestern University.
1. Warren v. Indian Refining Co., 30 F. Supp. 281 (N.D. Ind. 1939) (Slick, J.);
Downey v. Palmer, 31 F. Supp. 83 (S.D.N.Y. 1939) (Leibell, J.); Bethlehem Fab-
ricators, Inc. v. John Bowen & Co., 1 F.R.D. 274 (D. Mass. 1940) (Sweeney, j.);
VANDERBILT, CASES AND OTHER MATERIALS ON MODERN PROCEDURE AND ADMINISTRA-
TION 507 (1952); Mission Appliance Corporation v. Ajax Thermostatic Co., 8
F.R.D. 588 (N.D. Ohio 1948) (Jones, J.); Mid-State Products Co. v. Community
Credit Corp., 10 F.R.D. 592 (E.D. Ill. 1949) (Wham, C. J.); Maison de Marchands
Industrielle-Industrial Merchants v. New York Silicate Book Slate Co., 13 F.R.D.
15 (S.D.N.Y. 1952) (Weinfeld, J.).
2. Note the observation of Romer, L. J., in Renton Gibbs & Co. v. Neville & Co.,
[1900] 2 Q.B. 181, 187 (C.A.) : If on looking at the additional claim which the
plaintiff wants to set up, it appears to be one that cannot be added to the original
statement of claim without inflicting hardship and injustice on the plaintiff, and
further that it would be an injustice not to allow him to set it up, the Court has
jurisdiction to allow him to set it up in his reply.

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