Legal Definitions - withernam

Withernam is a historical legal concept from medieval English law that refers to a "taking in return." It was a remedy available when a person's property had been unlawfully seized or "distrained" by another party, and that original property could not be recovered. In such cases, the aggrieved party could obtain a legal order to seize an equivalent amount of property from the original wrongdoer. This reciprocal seizure was intended to compel the return of the initial property or to provide compensation for its loss.

• Example 1: A Farmer's Unlawfully Seized Livestock

  Imagine a medieval lord's bailiff unlawfully seizes a farmer's prized oxen as a form of distress, perhaps for a disputed debt or service. The farmer protests this action and a local court rules that the oxen must be returned. However, the bailiff, having already sold or hidden the oxen, claims they cannot be found. In this situation, the farmer could obtain a writ of withernam, which would authorize him to seize other property belonging to the lord (or the bailiff, if acting independently) of equivalent value, such as a number of sheep or other livestock, until his oxen were returned or he was adequately compensated. This illustrates withernam as a "reciprocal taking" when the original property was irrecoverable.

• Example 2: A Merchant's Missing Goods

  Consider two merchants in a bustling medieval market. Merchant A wrongfully seizes a shipment of valuable textiles belonging to Merchant B, falsely claiming a debt. Merchant B seeks legal recourse, and the court issues an order for the textiles to be returned. However, Merchant A quickly moves the textiles to a secret location, making them impossible for the sheriff to find and recover. Merchant B could then petition the court for a writ of withernam. This writ would authorize the sheriff to seize other goods or assets belonging to Merchant A, of comparable value to the original textiles, until Merchant A either returned the textiles or provided appropriate compensation. This demonstrates withernam as a mechanism to enforce justice when the original wrongfully taken property was no longer available.

• Example 3: A Vassal's Lost Hunting Falcons

  In a feudal context, a vassal owes certain services to his lord. The lord believes the vassal has defaulted on these obligations and, as a form of distress, seizes the vassal's valuable hunting falcons. The vassal successfully argues in court that the seizure was unlawful because he had fulfilled his duties, and the court orders the falcons returned. Out of spite, the lord releases the falcons into the wild, making their return impossible. The vassal could then apply for a writ of withernam, allowing him to seize other property of the lord, such as a horse or other valuable assets, to compensate for the loss of his falcons, or to pressure the lord into providing equivalent replacements. This exemplifies withernam as a "taking in place of a previous one" when the original property was irrecoverable, ensuring the wronged party received some form of redress.