Definition
De averiis captis in withernam (Latin: "for cattle taken in withernam") is a common law writ that issued when a sheriff returned to a pluries writ of replevin that the goods or cattle in question had been eloined — that is, removed to a place unknown or too distant to be recovered. Upon that return, the writ commanded the sheriff to seize cattle or goods belonging to the defendant in withernam: a retaliatory taking held as a pledge or counter-distress until the original goods were produced and replevied. The defendant's property, once taken in withernam, was detained and not returned to him until he made the original goods available for replevin proceedings.
The writ operated as an enforcement mechanism of last resort within the replevin process. Where ordinary replevin was thwarted by concealment or removal of the distrained goods, de averiis captis in withernam compelled compliance by subjecting the defendant to the loss of his own property.
Common Confusion
De averiis captis in withernam is closely related to, but distinct from, de averiis replegiandis — the standard writ for replevying beasts. De averiis replegiandis initiated the replevin process in the ordinary course; de averiis captis in withernam arose only after that process had already failed due to eloignment. The two writs address different procedural moments: one opens the replevin action, the other rescues it from frustration. Researchers encountering either writ in historical records should not treat them as interchangeable.
Why It Matters in Research
This writ appears almost exclusively in early English common law sources and English ecclesiastical and manorial court records. Researchers will rarely encounter it in American materials, because withernam and the elaborate writ-of-replevin machinery it supported did not transplant cleanly into American practice, where replevin was simplified and codified by statute at an early date.
The chief research trap is treating "withernam" and "de averiis captis in withernam" as synonymous. Withernam is the underlying legal concept — the retaliatory taking itself. De averiis captis in withernam is the specific writ that authorized the sheriff to execute that taking. Sources sometimes use withernam loosely to describe either the writ or the act; precision matters when tracing a procedural chain in historical records.
A secondary trap: the pluries writ. This writ issued only after a pluries replevin — meaning the original and alias writs had already been returned unsatisfied. Researchers reconstructing litigation chronology must account for the full sequence: original writ of replevin, alias, pluries, sheriff's return of eloignment, and then the issuance of de averiis captis in withernam. Finding this writ in a record without locating the earlier pleadings suggests incomplete file preservation.
The writ connects directly to the eloignment return. A sheriff's return of elongavit or eloigned was the triggering procedural fact; without it, this writ would not lie. Researchers reading sheriff's returns in early English plea rolls or Year Books should flag eloignment language as a signal that withernam proceedings may follow in the same file.
Historical Dictionary Support
Burrill's Law Dictionary is the primary historical source available for this term, and its entry is characteristically compressed. Burrill identifies the writ's function accurately — the sheriff's return of eloignment on a pluries replevin as the trigger, and the taking of the defendant's cattle as the remedy — and cites the Registrum Originale and Fitzherbert's Natura Brevium (F. N. B. 73, E. F.) as the governing authorities. Both are foundational English writ-register sources; researchers needing the fullest original treatment should consult Fitzherbert directly.
Burrill cross-references de averiis replegiandis in the same passage, usefully flagging the distinction between the two writs, though without elaborating the procedural relationship between them.
No American legal dictionaries of the same era give this writ independent treatment, reflecting its obsolescence in American practice by the time those dictionaries were compiled. Bouvier omits it as a standalone entry, folding related material under replevin and withernam. That silence is itself informative: by the mid-nineteenth century, the writ had no live American procedural significance and existed in legal literature only as historical background.
Jurisdictional Note
This writ was an instrument of English common law and has no direct American procedural equivalent. Some early American jurisdictions retained common law replevin forms briefly after independence, but the withernam mechanism was generally not carried forward. Researchers working in American jurisdictions should treat this term as exclusively historical.