Definition
A form of security given by oath rather than by bond, surety, or deposit of property. In Scots law, caution juratory arises when a party seeking a suspension of a court order—typically a debtor seeking to stay enforcement of a decree—swears under oath that the security offered is the best available to them. It is a substitute for conventional cautionary obligations when the suspender lacks the means or ability to provide a more substantial guarantee. The oath itself functions as the security: the party's sworn declaration that they cannot do better replaces a tangible financial pledge.
Common Language
The word "caution" in ordinary English means a warning or the quality of being careful and circumspect (Wiktionary). In Webster's 1913, caution is defined as "a careful attention to avoid danger or mistakes" and, secondarily, "security; guaranty; bail." The legal term here draws on this secondary, now largely archaic English sense—caution as a guarantee or pledge—combined with "juratory," meaning sworn by oath. Researchers encountering "caution" in older Scots legal documents should not read it as merely a warning; it carries the specific technical meaning of a formal security obligation.
Common Confusion
Caution juratory should not be confused with the general Scots law concept of cautionry (the giving of surety), which encompasses a much broader range of security arrangements including bonds and third-party guarantors. Caution juratory is the specific, oath-based subset invoked only when conventional security cannot be furnished. It is also distinct from a judicial caution, which is security ordered or accepted by a court under different circumstances.
Why It Matters in Research
This is a term of specifically Scots law and will appear almost exclusively in Scottish legal sources, commentaries on Scottish procedure, and treatises deriving from or comparing Scots and civil law traditions. Researchers working in English common law sources will not encounter it in domestic practice contexts.
The key research trap is the word "caution" itself. In English legal documents from the 17th through 19th centuries, "caution" sometimes appears in its security-pledge sense borrowed from Scots and civilian usage, and a researcher unfamiliar with that register may misread the term entirely. When caution juratory appears in historical sources, it signals a procedural moment: the suspender has applied to stay enforcement of an order but cannot provide conventional security, so the court accepts—or the procedure requires—an oath in lieu.
The Erskine citation (Inst. or Pract. 4, 3, 6) referenced in both Black's and Bouvier's points to John Erskine of Carnock's works on Scots law, the standard institutional authority. Researchers pursuing primary depth on this term should look to Erskine's Institute of the Law of Scotland and his Principles of the Law of Scotland, as these are the foundational treatments. Paterson's Compendium, cited in Bouvier's, is a secondary synthesis work useful for overview.
Because the term surfaces primarily in discussions of Scottish suspension procedure, corpus researchers will find it clustered near related procedural vocabulary: suspension, letters of suspension, arrestment, and inhibition. It is unlikely to appear in treatises on English equity or common law without an explicit comparative or civilian law frame.
Historical Dictionary Support
Black's and Bouvier's are in close agreement, reproducing nearly identical text. Both define caution juratory as security given by oath, identify its procedural context as the suspension proceeding, and cite Erskine as authority. Bouvier adds a citation to Paterson's Compendium. Neither dictionary elaborates on the procedural mechanics—what happens if the oath is later found false, how courts evaluated sufficiency, or whether the form survived into modern Scots practice. Both entries are descriptively thin, serving as orientation rather than full exposition.
What the historical dictionaries miss: neither Black's nor Bouvier's situates caution juratory within the broader Scots law of cautionary obligations, nor do they explain why oath-based security was recognized as a legitimate substitute in the civilian-influenced Scottish legal tradition. The connection to Roman and continental civil law—where juratory caution (cautio juratoria) was a recognized procedural device—goes unacknowledged. Researchers needing that depth must go directly to Erskine or to civilian law sources.
Jurisdictional Note
Caution juratory is a term of Scots law specifically. It has no direct counterpart in English common law procedure and does not appear in American legal practice. Its relevance to legal research outside Scotland is almost entirely historical and comparative.