Legal Definitions - de averiis captis in withernamium

De averiis captis in withernamium is a historical legal term referring to a specific type of court order, or writ, used in English common law. This writ was issued to a sheriff, directing them to seize and detain a defendant's cattle. The purpose of this seizure was to compel the defendant to return the plaintiff's cattle, which the defendant had unlawfully taken and moved out of the county where the dispute originated. The defendant's cattle would remain in the sheriff's custody until the plaintiff's unlawfully taken cattle were recovered and returned.

• Example 1: The Disappearing Herd

  Scenario: Farmer McGregor, living in County A, discovered that a significant portion of his cattle herd had been unlawfully driven away by a neighboring rancher, Mr. Jones, who resided just across the county line in County B. Mr. Jones had moved McGregor's cattle to his own pastures, making it difficult for the sheriff in County A to retrieve them directly.

  Illustration: In this situation, Farmer McGregor could petition the court for a writ of de averiis captis in withernamium. The writ would instruct the sheriff of County B to seize an equivalent number of Mr. Jones's cattle. These seized cattle would be held by the sheriff until Mr. Jones returned Farmer McGregor's original herd to County A, thereby using Mr. Jones's own property as leverage to force the return of the unlawfully taken animals.

• Example 2: The Unlawful Seizure for Debt

  Scenario: A merchant, Mr. Finch, claimed that a local farmer, Mr. Davies, owed him money. Without any legal right or court order, Mr. Finch entered Mr. Davies's property, seized several of his prize dairy cows, and then transported them to a different county where he had another farm, making them hard for Mr. Davies to locate or recover through local authorities.

  Illustration: Mr. Davies could seek a writ of de averiis captis in withernamium. This writ would authorize the sheriff in the county where Mr. Finch had moved the cows to seize some of Mr. Finch's own livestock. These animals would be held in custody until Mr. Finch returned Mr. Davies's unlawfully taken dairy cows, demonstrating the writ's function as a tool to compel the return of property moved beyond the initial jurisdiction.

• Example 3: Border Dispute and Livestock Theft

  Scenario: Two landowners, Ms. Evans and Mr. Miller, had a long-standing dispute over a property line that straddled two counties. One day, Mr. Miller, believing the land was his, crossed the disputed line, rounded up Ms. Evans's sheep, and drove them deep into his own property, which was entirely within the adjacent county, effectively hiding them from Ms. Evans's immediate reach.

  Illustration: Ms. Evans could apply for a writ of de averiis captis in withernamium. This writ would empower the sheriff of the county where Mr. Miller resided to seize a corresponding number of Mr. Miller's sheep or other livestock. These seized animals would be detained until Mr. Miller returned Ms. Evans's sheep, which he had unlawfully taken and moved across the county boundary, illustrating the writ's role in recovering property that had been deliberately removed from its original jurisdiction.