Definition
A Latin writ of medieval English origin directing the seizure of a defendant's cattle or livestock as a substitute remedy when the defendant has wrongfully taken the plaintiff's cattle and removed them beyond the reach of the ordinary writ of replevin. The writ's name translates roughly as "for cattle taken in withernam" — withernam being the reciprocal or retaliatory taking that the writ authorizes. Where replevin could not restore the plaintiff's own animals (because the defendant had concealed or removed them from the jurisdiction), this writ allowed the sheriff to seize other cattle belonging to the defendant as a form of distress in their place, holding them until the defendant produced the originals or the matter was resolved.
The writ is closely associated with the doctrine of withernam and is sometimes referenced under that term or the shortened form ERNAM in historical sources. It belongs to the broader family of replevin-related process.
Common Confusion
Historical dictionaries handle this term inconsistently. Bouvier's entry appears not under DE AVERIIS CAPTIS IN WITH but under ERNAM, where withernam is treated as the substantive concept and the Latin writ name is subordinated. Rapalje & Lawrence compounds this by cross-referencing to AVERIIS CAPTIS without providing an independent definition at either location. Researchers who encounter DE AVERIIS CAPTIS IN WITH in a primary source and search for it by that heading in historical dictionaries may find nothing, or may find the doctrine only after tracking the cross-reference chain to ERNAM or WITHERNAM. These are not distinct legal concepts — they are the same writ described from different angles.
Why It Matters in Research
This term is a navigational trap in the Law Mind corpus. The writ itself is substantively straightforward, but the indexing inconsistency across historical dictionaries means a researcher can easily miss the relevant material entirely. Three practical points:
First, headword variation is the primary research obstacle. Bouvier indexes the doctrine under ERNAM; Rapalje & Lawrence gestures toward AVERIIS CAPTIS but provides no content there. A researcher who looks only under DE AVERIIS CAPTIS IN WITH in either dictionary will find nothing useful without following the cross-reference.
Second, the writ is almost entirely obsolete. It belongs to the pre-modern procedural system built around real actions, distress, and the writ of replevin. It will appear in historical treatises and year books covering medieval and early modern English practice, but it has no operational counterpart in modern civil procedure. Encountering this term in a source signals that the source is either antique or is tracing historical roots of a modern remedy.
Third, the connection to replevin is the research bridge. Any Law Mind corpus materials dealing with the history of replevin, distress for cattle, or the development of possessory remedies for personal property are the appropriate context for this writ. It is best understood not as a freestanding remedy but as a procedural workaround for the limitation that replevin could not operate extraterritorially.
Historical Dictionary Support
Bouvier provides the most substantive account, though indexed under ERNAM rather than the full Latin writ name. He defines it as a writ lying where a defendant has "taken and carried away cattle of the plaintiff out of the country, so that they cannot be reached by replevin," authorizing seizure of the defendant's other cattle. His citation to Blackstone's Commentaries (Book 3, page 149) points to Blackstone's treatment of replevin and its associated process, which situates the writ within the common law property and distress framework.
Rapalje & Lawrence add nothing of substance, offering only a cross-reference. The entry under ERNAM in their dictionary contains no independent definition and relies entirely on the reader locating Bouvier's treatment.
Neither dictionary addresses the writ's procedural history with any depth, and neither traces how this remedy interacted with the developing law of distress and replevin in the period between Bracton and Blackstone. Historical treatises — particularly those addressing the old real and mixed actions — will be more informative than either dictionary for researchers needing that context.
Jurisdictional Note
This writ is a creature of English common law and has no recognized American procedural equivalent. In American jurisdictions, replevin and claim-and-delivery statutes developed independently without adopting this specific auxiliary writ. References to it in American legal literature are invariably historical or comparative.