Definition
A writ of ancient English origin directed against a person who has unlawfully seized another's cattle (averia) and driven them out of the county where they were taken. The writ was a remedy in the law of distress, designed to address a specific aggravated form of wrongful taking: not merely the unlawful seizure of livestock, but the removal of those animals beyond the territorial jurisdiction where the owner might otherwise seek replevin or another local remedy. By driving the cattle into a foreign county, the wrongdoer effectively frustrated the normal process of recovery, and this writ was the corrective mechanism.
The Latin phrase translates roughly as "for cattle taken in wither" — "wither" (or "withernam") referring to a retaliatory or second taking, used in law to describe the process of taking substitute goods when the original goods could not be restored.
---
Common Confusion
Averiis captis in wither is closely related to, but distinct from, two other writs researchers will encounter in the same historical neighborhood:
REPLEVIN is the standard remedy for the wrongful taking of goods or cattle, allowing the owner to recover the specific property pending litigation. Averiis captis in wither arises precisely when replevin has become impractical — because the cattle have been removed from the county and cannot be restored.
WITHERNAM (or capias in withernam) is the more commonly cited writ in this family. Withernam authorized the seizure of substitute goods belonging to the wrongdoer when the original distrained goods had been eloigned — that is, removed beyond reach. Averiis captis in wither operates in substantially the same conceptual space and is sometimes treated as a variant form or a precursor step in the same procedural chain. Researchers should not assume these writs are interchangeable; they arise at different procedural moments and carry different operative commands.
---
Why It Matters in Research
This term belongs to the medieval and early modern English law of distress and replevin — a procedural world largely dismantled by the 19th century. Researchers encountering it will almost certainly be working with:
- Pre-1800 English common law materials, plea rolls, or treatise literature (Fitzherbert, Coke, or Comyns);
- Historical discussions of the law of distress, estrays, or cattle trespass;
- Legal history scholarship on property remedies or the forms of action.
The key trap in historical sources is conflation with withernam. Many older dictionaries and abridgments treat the two interchangeably or use "withernam" as the umbrella concept while burying averiis captis in wither as a procedural subspecies. If you find a reference to averiis captis in wither in a historical source, follow it to discussions of eloignment and withernam — those entries will contain the substantive treatment.
This writ has no meaningful survival in American law. Colonial reception of English common law did not carry forward the specialized writ forms of the old replevin process in any operative sense. American legal dictionaries that include the term (as Rapalje & Lawrence does) do so as a reference tool for practitioners and scholars working with English authorities, not as a live procedural category.
Corpus researchers should note that search strings for this term should account for variant spellings: "averiis," "averijs," "withernam," "wither nam," and "in wither" appear inconsistently across historical sources. Latin abbreviation in manuscript sources compounds the difficulty.
---
Historical Dictionary Support
Rapalje & Lawrence provide the most accessible American dictionary treatment, correctly identifying the writ's function — issued against one who has unlawfully taken cattle and driven them out of the county. The entry is accurate but skeletal. It captures the core operative fact (removal from the county as the triggering circumstance) without situating the writ within the broader procedural sequence of distress and replevin.
Historical English sources offer more texture. The writ appears in the older abridgments and register of writs literature as part of the replevin family, specifically the branch dealing with eloignment — the act of removing distrained goods so far away that the sheriff cannot execute a replevin writ. At that point, the aggrieved party could seek withernam or averiis captis in wither to authorize seizure of substitute goods or compel return.
No major historical dictionary entry contradicts Rapalje & Lawrence on the basic definition. The gap in the literature is one of omission rather than dispute: most sources either subsume the writ under withernam or skip it entirely in favor of the more commonly litigated replevin forms.
---
Jurisdictional Note
Averiis captis in wither is an English common law writ with no recognized American statutory or procedural descendant. It is of research relevance in U.S. contexts only when tracing the historical roots of replevin doctrine or analyzing materials from the colonial and early national periods that cite English writ practice.
---