Definition
A technical phrase of common law pleading. "When and where" were words of art formerly required in a defendant's pleading when making what was called a "full defense" — a formal declaration that the defendant appeared to defend the suit not merely as to the specific matter alleged but as to the whole of the plaintiff's claim. The phrase signaled the defendant's readiness to contest the action at the time and place appointed by the court. Together with the broader formula of full defense, "when and where" served a ritualized, structural function in pleading rather than conveying substantive information about the case. The phrase had no independent legal effect; its significance was entirely procedural and formal.
Common Confusion
"When and where" should not be mistaken for a substantive allegation about time and place — concepts that matter greatly in pleading (particularly in establishing venue, jurisdiction, or the elements of a tort). Those pleading requirements are separate and distinct. "When and where" as a term of art refers only to the formal language of the full defense formula, not to the general requirement that a pleading identify the time and location of the events at issue.
Why It Matters in Research
This term is essentially a relic. It belongs to a closed chapter of common law pleading practice that was largely swept away by the adoption of code pleading in American states beginning in the mid-nineteenth century and by the Federal Rules of Civil Procedure in 1938. Researchers encountering "when and where" in pre-code sources — particularly in English common law materials, early American state court records, or colonial-era pleadings — should understand it as part of the formal language of entry and defense, not as a freestanding legal concept with ongoing application.
The primary trap for researchers is anachronistic reading: importing the phrase into a modern context where it has no technical meaning, or assuming that its appearance in an old pleading signals something about the facts of the dispute. It does not. Its appearance signals adherence to a pleading formula.
Researchers working in historical pleading materials should look to Chitty's treatise on pleading (cited by Bouvier) for the fuller procedural context. The phrase appears most often in connection with the formal entry of appearance and the structure of defensive pleadings at common law, not in connection with any specific cause of action.
For researchers tracing the evolution of pleading standards, "when and where" is a useful marker of the pre-code era. Its disappearance from practice corresponds precisely with the reform movements that replaced formulaic common law pleading with notice pleading and fact pleading systems.
Historical Dictionary Support
All three source dictionaries — Black's (both editions) and Bouvier's — are in complete agreement: "when and where" were technical pleading words formerly necessary in making full defense to certain actions. The definitions are nearly identical across sources, suggesting the term was well-settled in legal usage and uncontroversial in meaning by the time these dictionaries were compiled.
Bouvier adds the useful cross-references to Chitty's Pleadings and to the entry for DEFENCE, pointing researchers toward the broader procedural framework in which the phrase operated. Black's both editions omit these cross-references but confirm the same definition.
None of the historical sources explain which specific actions required the full defense formula or exactly when the requirement fell away. This is a gap researchers should fill by consulting Chitty directly or by reference to historical pleading treatises. The dictionaries treat the phrase as already archaic — a term warranting definition primarily because it appears in older materials, not because it retains active use.
Jurisdictional Note
Because this phrase belongs to English common law pleading that predates American procedural reform, its relevance is uniform across jurisdictions in the sense that it is uniformly obsolete in modern practice. Researchers working in jurisdictions that retained modified common law pleading longer than others (some states delayed code adoption) may encounter the phrase in source materials slightly later in time, but the phrase has no current operative force in any American jurisdiction.