Definition
A procedural remedy in the law of replevin. Withernam is the taking of a second set of goods from a defendant — by way of reprisal — in place of goods that were originally distrained but have since been eloigned (removed beyond the reach of the law or secreted away). Because the original goods cannot be returned, the sheriff is authorized to seize other goods belonging to the defendant as a substitute.
The term appears most frequently in the phrase capias in withernam, which is the name of the writ commanding the sheriff to execute this reprisal taking. The writ issues when a defendant in a replevin action obtains judgment for a return of the distrained goods, but the plaintiff has eloigned them, making return impossible. The sheriff is directed to seize the defendant's other goods and hold them — not deliver them to the plaintiff — until the defendant consents to allow the original distress (and the whole of it) to be replevied.
In substance, withernam is a reciprocal or retaliatory distress: goods taken in exchange for goods that cannot be recovered through ordinary process.
Common Language
Modern common usage (Wiktionary): Listed only as an alternative form of "withername," with no independent definition. The term has no meaningful modern general usage.
Historical common usage (Webster's 1913): "A second or reciprocal distress of other goods in lieu of goods which were taken by a first distress and have been eloigned; a taking by way of reprisal — chiefly used in the expression capias in withernam."
Webster's 1913 captures the legal meaning accurately, which is unsurprising — by 1913, withernam had no life outside the law. The term is pure legal procedure and should not be interpreted through any lay sense of the word.
Common Confusion
Withernam and replevin are frequently encountered together and are sometimes loosely treated as interchangeable in older sources. They are not synonymous. Replevin is the underlying action by which a party seeks return of distrained goods; withernam arises only after replevin has been frustrated by eloignment. Withernam is the remedy for the failure of replevin, not a variant of it.
Distress and withernam are also distinct. Distress is the original taking; withernam is the secondary, retaliatory taking that substitutes for a distress that can no longer be undone.
Why It Matters in Research
Withernam is encountered almost exclusively in historical sources. The action of replevin still exists in modified form in most American jurisdictions, but the procedural machinery of the capias in withernam writ — tied as it was to the common-law forms of action — did not survive the merger of law and equity or the modernization of civil procedure under the Federal Rules and their state equivalents. Researchers encountering this term in pre-twentieth-century materials should understand it as a writ-era procedural device, not a living remedy.
The eloignment requirement is the doctrinal trigger. A researcher tracing cases involving withernam must look first for findings of eloignment — that word appears in every operative definition of the term, and its presence in the record is the jurisdictional predicate for the writ. Without eloignment, there is no withernam.
Rapalje and Lawrence refer researchers to the entry for capias in withernam rather than defining the term independently — a useful pointer indicating that in practice, practitioners and courts dealt with the writ rather than the underlying concept. Any corpus search for withernam should therefore also run searches for capias in withernam and elongata (the sheriff's return that eloignment has occurred, which triggers the writ).
The connection to Coke's Institutes (2 Inst. 141) is consistent across definitions and serves as the primary common-law authority. Blackstone's treatment at 3 Bl. Comm. 148 provides the other standard reference. Both are frequently cited in older American replevin cases and treatises, and researchers working in pre-Civil War American legal sources will encounter these citations regularly.
Historical Dictionary Support
The historical dictionaries achieve near-complete agreement on substance. Black's (both editions), Burrill, and Bouvier all define withernam as a reprisal taking in lieu of eloigned goods, citing the same two authorities — Coke and Blackstone. Burrill adds the etymology (Saxon: weder/other + naam/taking; Latin: withernamium), which usefully confirms the literal meaning of "other taking" and explains the term's logic. Bouvier's entry is the most procedurally detailed, describing the sheriff's duty to hold — not deliver — the substitute goods until the defendant submits to having the original distress replevied, a nuance the other entries understate.
Rapalje and Lawrence is the outlier, providing no substantive definition and redirecting to capias in withernam. This is procedurally accurate — the writ was the operative instrument — but researchers relying solely on Rapalje will miss the underlying doctrine.
No significant divergence exists among the sources on core meaning. The historical dictionaries are silent, however, on the American reception of this remedy and on its obsolescence under reformed procedure, a gap researchers must supply from other sources.
Jurisdictional Note
Withernam as a distinct writ is obsolete in American practice. Some states retained modified replevin procedures into the twentieth century that preserved elements of the reprisal concept, but the named writ of capias in withernam is not found in modern American procedural codes. English law similarly subsumed the remedy within modernized civil procedure. Researchers should treat any claim that withernam is a currently operative writ with significant skepticism.