Definition
A Latin phrase meaning "for making execution in [withernam]." De executione facienda in withernamium is a historical writ of English common law directing a sheriff or other officer to make execution by way of withernam — that is, to seize substitute goods belonging to a defendant who had wrongfully taken or concealed the original goods subject to a prior writ of replevin. The full phrase is properly understood as a compressed formula identifying the purpose (making execution) and the mechanism (withernam) of the writ it introduces.
The term appears as part of the formal register of original writs and belongs to the broader family of execution writs used by common law courts to enforce judgments and orders when ordinary process had failed or been evaded.
Common Confusion
De executione facienda in withernamium is easily conflated with two related but distinct writs: the capias in withernam and the writ de executione judicii. The capias in withernam is a body-process variant authorizing arrest in connection with withernam proceedings; de executione facienda in withernamium is directed at property, not persons. De executione judicii is a separate general writ commanding execution of a judgment and operates outside the replevin context entirely. Burrill's entry on withernamium cross-references these writs in close proximity, which compounds the risk of confusion when reading historical sources.
Why It Matters in Research
This term will appear in Law Mind corpus materials almost exclusively in its Latin form, in abbreviated writ registers, or embedded within entries on replevin and withernam rather than as a freestanding entry. Researchers should treat it as a navigational signal: its presence in a source almost always indicates proximity to materials on distress, replevin procedure, or the enforcement mechanisms available when a defendant evaded return of goods.
Several traps await the historical researcher. First, the phrase is incomplete as typically encountered — sources including Fitzherbert's Natura Brevium and the Registrum Omnium Brevium record it as a heading or label, not a full writ text, so researchers expecting a developed writ formula may need to consult multiple sources in sequence. Second, the withernam mechanism it activates was already archaic by the eighteenth century, meaning treatise writers from Blackstone onward tend to describe it in the past tense or omit it entirely; its absence from later sources does not mean the writ was never operative. Third, early American sources rarely address this writ at all, since withernam as a remedy did not transplant meaningfully into American practice — researchers working in colonial or early federal materials should not expect to find it functioning as live procedure.
The writ belongs to a cluster of replevin-related process that requires understanding in sequence: distress → replevin → return of goods → default or evasion → withernam (including de executione facienda in withernamium as the operative instrument). Pulling any one writ from this chain without understanding its procedural neighbors produces an incomplete picture.
Historical Dictionary Support
Burrill's Law Dictionary treats de executione facienda in withernamium as a sub-entry under the withernam family, identifying it as "a species of capias in withernam" with reference to the Registrum Originale at folio 82b. This is a compressed treatment; Burrill does not develop the writ's elements or distinguish it fully from the capias variant. The cross-references to Fitzherbert's Natura Brevium and Reeves' History of English Law (vol. 3, p. 56) in the adjacent entry on de executione judicii signal where researchers should look for fuller procedural context, though those sources address execution of judgment generally rather than withernam specifically.
Historical dictionaries uniformly treat this term as part of the writ register's technical vocabulary rather than as a concept requiring extended definition. This reflects the nature of the Registrum itself, which was a practitioner's index of forms rather than a doctrinal exposition. Researchers relying solely on dictionary entries for this term will find the treatment thin; the substantive content sits in the replevin and distress chapters of the major common law treatises.
Jurisdictional Note
This writ is a creature of English common law with no meaningful American successor. English courts formally abolished the old original writ system in the nineteenth century, rendering de executione facienda in withernamium a historical artifact. Modern replevin statutes in American jurisdictions provide their own enforcement mechanisms without reference to withernam.