from the GNU version of the Collaborative International Dictionary of English.
- noun (Law) 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, which is the name of a writ used in connection with the action of replevin (sometimes called a writ of reprisal), which issues to a defendant in replevin when he has obtained judgment for a return of the chattels replevied, and fails to obtain them on the writ of return.
from Wiktionary, Creative Commons Attribution/Share-Alike License.
- noun Alternative form of
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English fashion of making oath and not after the Norman fashion by wager of battle; their goods were to be free of all manner of customs, toll, passage and lestage; their husting court might sit once a week; and lastly, they might resort to "withernam" or reprisal in cases where their goods had been unlawfully seized.
Notwithstanding the doubts raised by Mr. Wild's lawyer on his examination, he insisting that the proceeding was improper, for that a writ de homine replegiando should issue, and on the return of that a capias in withernam, the justice inclined to commitment, so that Wild was driven to other methods for his defence.
The History of the Life of the Late Mr Jonathan Wild the Great Henry Fielding 1730
X, de gone; fo here, if after the withernam he plead non cepit,
Whether the plaintiff was demandable upon the withernam f Alfo there was a former queftion, Whether he might be bailed upon the habeas corpus before the return of the withernam?
If the Iheriff return that the diftrefs is eloigned, fo that he cannot deliver them upon the replevin, or upon the retorno bar itendoy the withernam goes; for where it appears there cannot be a delivery made of the fame, the law commands an equivalcniK
And thrs prevents the mifchicf of the 'withernam againft the plaintiff.
And fo if the defendant at the pluries re - turned, appear and plead that the cattle were dead in the default of the plaintiff, the plaintiff fhall not have withernam; for if he did not take them, or if the cattle be dead by the default of the plaintiff, then,
Upon which Mr. More sent him this question, 'Utrum averia carucæ, capta in vetito namio, sint irreplegibilia, Whether beasts of the plough, taken in withernam, are incapable of being replevied:'"
a i, ed upondw 'and if judgment againft him, that he render his body in withernam ibidem remanfurus quoiifq; he render the party, and permit him to go at large; therefore if he be ren -, dered again, he is in cuftody upon the withernam, as be - fore.