Definition
A writ of scire facias quare restitutionem non (commonly abbreviated in older indices as "scire facias quare resti[tutionem non]") is a judicial writ issued after a judgment of reversal, commanding the party who had previously received execution of a prior judgment to appear and show cause why restitution should not be made to the party against whom that execution ran. Where a judgment had been executed — that is, where money had been collected or property seized under it — and that judgment was subsequently reversed on writ of error or appeal, the successful party on reversal was entitled to have restored what had been taken from them. This writ was the procedural mechanism for compelling that restoration. It issued out of the court that reversed the judgment and served as the foundation for a formal order or judgment of restitution.
The full Latin phrase means, roughly, "cause to know why restitution has not [been made]." Like all scire facias writs, it was not an original action but a continuation of existing proceedings, requiring the responding party to show cause against the relief sought.
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Common Confusion
The term is frequently truncated in older reports and indexes, appearing as "scire facias quare resti." or "s.f. quare resti." Researchers unfamiliar with the abbreviation may fail to recognize it as a reference to this specific writ form. It should be distinguished from the broader writ of scire facias generally, which encompassed many distinct procedural purposes. It should also be distinguished from a simple order of restitution made without process, which some courts issued summarily after reversal without requiring a formal scire facias where the party against whom execution had been levied was still before the court.
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Why It Matters in Research
This writ is primarily a creature of common law pleading practice and appears almost exclusively in pre-merger sources — English reports, early American state court decisions, and procedural treatises predating the consolidation of law and equity and the abolition of common law forms of action. Researchers working in pre-code American jurisdictions (roughly pre-1938 federally, and earlier dates in various states) may encounter this writ in appellate records and writs books without explanation.
The truncated form "quare resti." in indexes is a consistent trap. Rapalje & Lawrence index it under a cross-reference from "tutionem non" — itself an abbreviation fragment — pointing researchers to the main scire facias entry. This cross-reference structure means a researcher who goes directly to the alphabetical location of the full phrase may miss relevant surrounding material.
Because the writ was a continuation of prior proceedings rather than an independent suit, the jurisdictional and procedural rules governing it tracked the original action. This matters when tracing a case across multiple proceedings: the scire facias quare restitutionem non will appear as a separate docket entry or writ but belongs to the same chain of litigation as the reversed judgment.
In English practice, restitution after reversal was a well-established common law right, and the writ had a long procedural history. Early American courts largely adopted English practice on this point, though some states moved to summary restitution orders as equity practice and then code pleading reduced reliance on formal writs. By the mid-nineteenth century, the writ was already becoming an anachronism in jurisdictions that had simplified post-reversal procedure by rule or statute.
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Historical Dictionary Support
Rapalje & Lawrence do not provide a freestanding entry for this writ by its full name. Their dictionary instead indexes the concept under a cross-reference — "TUTIONEM NON. — See SCIRE FACIAS, 210" — directing the reader to the broader scire facias entry for substantive treatment. This indexing choice reflects the compilers' approach of consolidating scire facias variants under a single master entry rather than providing discrete definitions for each writ form.
The absence of independent treatment in Rapalje & Lawrence is not unusual for this period. Most nineteenth-century American legal dictionaries treated scire facias forms collectively, with the quare restitutionem non variant receiving brief notice as one of several post-judgment writs. Bouvier's Law Dictionary similarly addressed restitution after reversal in the context of error proceedings rather than under a discrete writ heading. The specialized procedural treatises — particularly on writs of error and appellate practice — contain fuller treatment.
What the historical dictionary sources collectively miss is any sustained analysis of how this writ functioned in American jurisdictions that had partially modernized their procedure, where courts sometimes blended common law writ forms with statutory or equitable practice. Researchers relying solely on dictionary definitions will underestimate the procedural variation across states.
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Jurisdictional Note
English common law practice supplied the baseline, but American states varied in how long they maintained formal scire facias process for post-reversal restitution. Some states retained the writ form well into the nineteenth century; others substituted summary motion practice earlier. Federal courts operated under the Judiciary Act framework and later the Rules of Court, with formal writ practice giving way to motion-based procedure over the nineteenth century.
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