Chapter 30: Bill Thornton: Counterclaims in Common Law
Bill Thornton teaches common law and has extensive knowledge and experience. His website can be found at 1215.org. If anyone were to ask me who do I recommend when it comes to studying law and learning about conducting a case in court, it would have to be Bill. Bill is well-known in the common law and sovereignty freedom movement and has been in touch with lots of people throughout the years, and continues to teach classes every once in a while. Bill’s approach is radically different than everything we have been learning about and the reason I saved this for last, is because it’s the best overall approach, in my opinion, however, it utilizes much knowledge already gleaned from this book. The approach is all that is different, and the fact that we stay out of equity entirely. This makes everything FAR simpler to deal with. What we are dealing with here are the basic “rules of court” and administrative procedure. The venue, however, is different, and that is because jurisdiction is being challenged from the very get-go.
The best way to handle any court case moving against you is to ACT IMMEDIATELY. Do not hesitate too long because then acquiescence kicks in and it appears you have slept on your rights. Once your court case moves past the first few stages, it becomes more and more difficult to go back to square one, but fortunately, jurisdiction may be challenged at any time.
Courts of Record
In order to proceed in any case, you must be in a court of record, to be guaranteed to get all your evidence on the record.
See 7 Cal Jur 571 for more info
about courts of record
7 California Jurisprudence, Bancroft Whitney (1922), Page 580-581
Courts of Record.–Courts are divided generally into courts of record and those that are not of record. A court of record is a judidical tribunal having attributes and exercising functions independently of the person designated generally to hold it, and proceeding according to the course of the common law. 4 In a court of record the acts and judicial proceedings are enrolled, whereas, in courts not of record, the proceedings are not enrolled. The privilege of having these enrolled memorials constitutes the great leading distinction between courts of record and courts not of record. 5
- Ex parte Thistleton, 52 Cal. 220. As to what are “courts of common-law jurisdiction” within the meaning of the federal naturalization act, see Alienage and Citizenship, Vol. 1, p. 911.
- Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, per Sawyer, J., concurring. See infra, §§ 26-28, as to records.
Under the constitutional revision of 1863, the district, county and probate courts were also courts of record. Caulfield v. stevens, 28 Cal. 118.
“The proceedings of the courts of common law are records. But every minute made by a clerk of a court for his own future guidance in making up his record is not a record.” 4 Wash. C.C. 698. See 10 Penn. St. 157; 2 Pick. Mass. 448; 4 N. II. 450; 6 id. 567; 5 Ohio St. 545; 3 Wend. N.Y. 267; 2 Vt. 573; 6 id. 580; 5 Day, Conn. 363; 3 T. B. Monr. Ky. 63.
“Proceedings in courts of chancery are said not to be, strictly speaking, records; but they are so considered.” Gresley, Ev. 101. And see 8 Mart. La. N. S. 303; 1 Rawle, Penn. 381; 8 Yorg. Tenn. 142; 1 Pet. C. C. 352. –
(Bouvier’s Law Dictionary, 14th Ed. 1870) (1)
“The Common-Law Record consists of the Process, the Pleadings, the Verdict and the Judgment. After Judgment, such Errors were Reviewable by Writ of Error. Errors which occurred at the Trial were not part of the Common-Law Record, and could be Reviewed by a Motion for a New Trial, after Verdict and before Judgment; by Statute, such Errors could be Reviewed after judgment by incorporating them into the Record by means of a Bill of Exceptions. It was therefore essential to keep clearly in mind the distinction between Matter of Record and Matter of Exception.” (1)
(1) https://www.1215.org/lawnotes/lawnotes/courtrec.htm
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Bill explains the difference between courts which are inferior to courts of record in common law, being statutory courts called nisi pius courts, which try only fact and not law. When trying facts only, a contract is relied on whether expressed or not and the jury is only to hear and determine the facts and whether or not the facts say you broke the law. Nisi prius courts cannot and will not give you remedy or justice in cases where there is no injured party and you are being accused of breaking or violating some code. The following is a partial extract from Bill’s site and involves a short conversation:
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Subject: Nisi Prius Court
“George H. Cullins” wrote:
“Black’s Law Dictionary defines Nisi Prius Courts as: “The nisi prius courts are such as are held for the trial of issues of fact before a jury and one presiding judge. In America the phrase was formerly used to denote the forum (whatever may be its statutory name) in which the cause was tried to a jury, as distinguished from the appellate court.”
To me, that says the nisi prius court is a TRIAL COURT, which of course is where the FACTS of a case are discovered.
Thornton says a nisi prius court is a “court of no record.” But a record is kept in a trial court
Bill Thornton replies:
“On the surface of it, your doubts are reasonable. I’ll do my best to explain nisi prius courts, courts of record, and courts of no record. First, the mere keeping of a record does not qualify any court to be a court of record. Black’s Law Dictionary, Fifth Edition, contributes to the confusion by listing only two of the four requirements for a court to qualify as a court of record. If you want the full explanation, see https://www.1215.org/lawnotes/lawnotes/courtrec.htm. In California, all courts are named as courts of record. However, if in an individual case they are not operated as courts of record, then they don’t qualify as such. It takes more than a name to make a court of record. Even though a court may be keeping a record, it is a court of no record if it does not conform to the remaining three requirements for a lawful court of record. Black’s Law Dictionary’s omissions are subtle. But, if you look deep enough, you can recombine the information and get to the real meaning of terms such as “nisi prius.”
“Nisi prius” is a Latin term. Individually, the words mean thus: “Prius” means “first.” For example, “Prius vitiis laboravimus, nunc legibus” means “We labored first with vices, now with laws.”
“Quoted from Black’s Law Dictionary, Fifth Edition. “Nisi” means “unless.” Quoting from B.L.D., 5th Ed.: “The word is often affixed as a kind of elliptical expression, to the words ‘rule,’ ‘order,’ ‘decree,’ ‘judgment,’ or ‘confirmation,’ to indicate that the adjudication spoken of is one which is to stand as valid and operative unless the party affected by it shall appear and show cause against it, or take some other appropriate step to avoid it or procure its revocation.”
“A rule of procedure in courts is that if a party fails to object to something, then it means he agrees to it. A nisi procedure is a procedure to which a person has failed to object (show cause) and therefore it follows that the person agrees to it. Or, conforming to the format in the preceding paragraph, a nisi procedure is a procedure to which a party agrees UNLESS he objects or shows cause.
A “nisi prius” procedure is a procedure to which a party FIRST agrees UNLESS he objects.
A “nisi prius court” is a court which will proceed unless a party objects. The agreement to proceed is obtained from the parties first.
It is a matter of right that one may demand to be tried in a court of record. By sheer definition, that means that the court must proceed according to the common law (not the statutory law). The only way that a court can suspend that right is by the prior agreement of the parties. For tactical reasons the state prefers to proceed according to statutory law rather than common law. The only way it can do that is to obtain the prior agreement from the parties. That is the primary (but hidden) purpose of the arraignment procedure. During arraignment the court offers three choices for pleading (guilty, not guilty, nolo contendre). But all three choices lead to the same jurisdiction, namely a statutory jurisdiction, not a common law jurisdiction. That is to say, the question to be decided is whether or not the statute was violated, not whether the common law was violated. (End of Extract) (2)
(2)https://www.1215.org/lawnotes/lawnotes/nisiprius.htm
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Differences Between Superior and Inferior Courts
A court of record is a “superior court.”
A court not of record is an “inferior court.”
“Inferior courts” are those whose jurisdiction is limited and special and whose proceedings are not according to the course of the common law.” Ex Parte Kearny, 55 Cal. 212; Smith v. Andrews, 6 Cal. 652
“Criminal courts proceed according to statutory law. Jurisdiction and procedure is defined by statute. Likewise, civil courts and admiralty courts proceed according to statutory law. Any court proceeding according to statutory law is not a court of record (which only proceeds according to common law); it is an inferior court.
“The only inherent difference ordinarily recognized between superior and inferior courts is that there is a presumption in favor of the validity of the judgments of the former, none in favor of those of the latter, and that a superior court may be shown not to have had power to render a particular judgment by reference to its record. Ex parte Kearny, 55 Cal. 212. Note, however, that in California ‘superior court’ is the name of a particular court. But when a court acts by virtue of a special statute conferring jurisdiction in a certain class of cases, it is a court of inferior or limited jurisdiction for the time being, no matter what its ordinary status may be. Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210; Cohen v. Barrett, 5 Cal. 195” 7 Cal. Jur. 579
“The decisions of a superior court may only be challenged in a court of appeal. The decisions of an inferior court are subject to collateral attack. In other words, in a superior court one may sue an inferior court directly, rather than resort to appeal to an appelate court.
“Decision of a court of record may not be appealed. It is binding on ALL other courts.
“However, no statutory or constitutional court (whether it be an appellate or supreme court) can second guess the judgment of a court of record. “The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.” Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202-203 (1830). [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218, 255 (1973)] (3)
Tax Court is a Court of Record
Tax Court is a court of record. It is not an administrative court unless you permit it to quit being a court of record.
Here is what the Internal Revenue Code designates:
26 USC 7441: Status. “There is hereby established, under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court. The members of the Tax Court shall be the chief judge and the judges of the Tax Court.”
Counterclaims Challenge Jurisdiction
“When you do a counterclaim does that mean their claim is no longer active?
“Yes. They temporarily lose jurisdiction because in the first cause of action the question of jurisdiction is the issue. Once jurisdiction is challenged, jurisdiction cannot be ‘assumed,’ it must be proven to exist. They must prove they have jurisdiction before they may proceed. The following case is Rhode Island v. Massachusetts, (1838):
(3)https://www.1215.org/lawnotes/lawnotes/supvinf.htm
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“However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action, by hearing and determining it. 6 Peters, 709; 4 Russell, 415; 3 Peters, 203-7” Cited by Rhode Island v. Massachusetts, 37 U.S. 657 (1838) (Verified) (4)
“Where a court has jurisdiction, it has a right to decide any question which occurs in the cause, and whether its decision be correct or otherwise, its judgments, until reversed, are regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a remedy sought in opposition to them, even prior to a reversal. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law as trespassers.” Elliott v Peirsol, 1 Pet. 328, 340, 26 U.S. 328, 340, 7L.Ed. 164 (1828) (verified) (5)
No officer can acquire jurisdiction by deciding that he has it
Prosser and others vs. Secor (May 7, 1849)
“In determining whether they have jurisdiction or not, in a given case, assessors do not act judicially. No officer can acquire jurisdiction by deciding that he has it. In all such cases every officer, whether judicial or ministerial, decides at his peril. It may often be difficult for assessors to determine whether a person is or is not a taxable inhabitant, and operate harshly to make them responsible for erroneous decisions in certain cases. But the difficulty is no greater than is encountered in the discharge of the duties of every office. And a due regard to the security of private rights requires that the rule should be inflexibly maintained. Private rights would be rendered uncertain and insecure indeed, should it be left to the determination of the judge or magistrate to fix the bounds to his authority; and doubly so should it be held that such determination was in its nature judicial and the magistrate protected by it in the exercise of power or authority thus acquired.
“The defendant being a minister of the gospel was not a taxable inhabitant, and the plaintiffs in error had no jurisdiction over him or his property, nor could they acquire any by any act or decision of their own. They must therefore be held responsible.” – Prosser and others vs. Secor 5 Barb. 607 (May 7, 1849) (Verified) (6)
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Understanding Court Process, and Procedure is essential and requires some time studying. The following is a list of steps Bill lists on his site which require understanding when fighting in court:
Letters to the Court, Case Flow, Notice. Notice Example, Causes of Action, Caption-Florida. Caption-California (Counterclaim), Action – Elements, Action, Law of the case, Summons
Preservation of Interest, Motion Flow, Motions, Answer, Reply, At Issue Memorandum, At Issue – Yolo Co., At Issue – Orange Co., At Issue – California, List of Some Forms, Discovery, Trial, Contempt, Contempt & Bench Warrant, Judgment, Judgment – Law of the Case, Writ of Execution – All of these sections should be studied carefully to insure success. They may be read and studied at https://www.1215.org/lawnotes/lawnotes/seminar090110/000-start.htm
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(4) https://supreme.justia.com/cases/federal/us/37/657/
(5) https://supreme.justia.com/cases/federal/us/26/328/
(6) https://cite.case.law/barb/5/607/
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Counterclaim Notes
“The only difference between an action at law and a counterclaim in a court of record is that the original parties have their identifications changed. The defendant becomes the counterplaintiff, and the plaintiff becomes the counterdefendant. Other than that, the counterclaim is written the same as an action at law.
“A court of record proceeds according to the common law. It is not a criminal court and it is not a civil court; those two courts are statutory courts, not common law courts.
“Also, note that in every county there is only ONE court. The court is typically subdivided into divisions. No matter what division you file the case in, it is still the same court. When you file a common law case the clerks typically don’t know what that is and tend to classify it as a civil case. Sometimes in the Federal courts it is filed as a “constitutional court” case or a “miscellaneous” case (which has a lower filing fee).
“It is not necessary to argue too much with the clerk. If the clerk is too ignorant to do it the right way, don’t worry. If the clerk doesn’t like the caption at the top of the page, don’t ask what you should do because he cannot give you legal advice. Instead, you ask him what he requires: he can tell you that.
“Changes to the paper can be made on the spot by hand printing IF you print very clearly. Hand printing is legally the same as typewriting. If the clerk objects to the term “counterclaim” you may change it to say “complaint”. It doesn’t really matter because it is the actual text in the body of the paper that is the substance. Titles, headings, and other items in the caption are merely aids to understanding. The substance of the paper is what controls, not the titles and headings.
“There are two kinds of trial courts: superior and inferior.
“The criminal court is an inferior court because it is operating according to special rules (criminal code) and not according to the common law. Even if its name is “Superior Court of …..” it is still an inferior court so long as it is operating according to some code or statutes rather than the common law.
“On the other hand, a court of record, so long as it meets the criteria, is a true superior court.
“The decisions and proceedings of an inferior court are not presumed to be valid. The inferior court can be sued in a superior court (that’s called a “collateral attack”). In other words, the superior court (court of record) out ranks the inferior court not of record”.
“When you do a counterclaim, the primary issue is jurisdiction. By what authority does the inferior court presume to take jurisdiction over the parties? When the counterclaim is filed, all parties in the inferior court, and the inferior court itself, are served with the suit. Because the primary issue is jurisdiction, the proceedings in the inferior court must stop immediately and may not proceed until it proves in the superior court that it has jurisdiction. If it fails to prove its jurisdiction, then the final judgment of the superior court will be that the inferior court had no jurisdiction and all proceedings thereafter are barred.
“If the inferior court proceeds anyway, then contempt proceedings and judgment enforcement proceedings can be initiated in the superior court. (7)
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What do you do when you are in front of a judge?
“When you are a plaintiff and one of the people of the United State (or a state) in a court of record the judge has no power to make a decision unless you grant it to him. The tribunal (you or a jury) is independent of the magistrate, and all judges in California are magistrates (California Penal Code, Section 808).
“When in court there is no need to argue your case. All of your arguments should have been made in the preceding paperwork. The only reason for a court hearing is to give the court an opportunity to ask questions of the litigants to clarify any points. Anything you say in court is considered a novation to your papers on file; your verbal actions override your previous papers.
(7)https://www.1215.org/lawnotes/lawnotes/counterclaimnotes.htm
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Pages 390, 391 Not Included in Free Edition – To Order the FULL Version in either Softcover or E-Book, Please Visit the Store.
Page 392 Follows:
The bill should be no less than the federal minimum wage per hour. On the other hand, attorneys charge as much as $600/hour ($10/minute) for their time. You choose the value of your time.
If they refuse to pay, take them to small claims court!
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This concludes the chapter and my introduction of Bill Thornton and his material. If you have built up a fair understanding of the elements discussed in this book, learning Bill’s material should be relatively easy.
The best way to learn this material is to first learn the simple rules of court. I found an excellent website which teaches all the fundamental rules of court, in an easy to learn format, and does not cost much money at all. I never ever recommend products, services or website subscriptions I do not believe in 100%, for their value and their quality of their product or service. I use this service to learn, myself, and therefore I can safely recommend this to others. It’s called Jurisdictionary or How to Win in Court, and they offer an affiliate program which I am a member of. There is nothing “shady” about this course. What you see is what you get. This is the information we all should have learned by the end of Jr. High School.
I do not earn very much from this. If you would like to join and support me in the process, here is the link to do so. If you do so, I sincerely appreciate it.
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4.) Request for Admissions, Request for Production, Interrogatories, Depositions, Court Process, Subpoenas, Writs, etc.
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Chapter 31
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