Mend the Hold, In Ry. Co. v. McCarthy (1877), the defendant railroad proved at trial that it was incapable of transporting certain cattle on a Sunday solely because of a lack of cars.

On appeal, the defendant alleged that it had failed to deliver the cattle because a Sunday shipment would have violated West Virginia's "Sunday Law."

The United States Supreme Court held that defendant was estopped. To make this argument, reasoning that "[w]here a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold."

McCarthy is one of the earliest articulations of the "mend the hold" doctrine. It is an equitable doctrine that precludes the assertion of inconsistent litigation positions, usually concerning the meaning of a contract, within the context of a single lawsuit.

The metaphor that gives the doctrine its name derives from wrestling terminology and means "to get a better grip (hold) on your opponent."

Traditionally, the "mend the hold" doctrine has been applied only to inconsistent positions asserted within the same legal proceeding, although at least one modern case has extended the doctrine to inconsistent positions asserted in two different proceedings. Anderson & Holober, 4 Conn. Ins. L.J. at 692 n.413 (citing Rottmund v. Cont'l Assurance Co., 813 F. Supp. 1104, 1111 (E.D. Pa. 1992)).

It is a rule generally applied in actions on a contract, most often against insurance companies that attempt to shift positions in the course of litigation in an effort to deny policyholders' claims.

It is unsettled whether the doctrine is a procedural rule or asubstantive rule of contract law. See AM Int'l v. Graphic Mgmt. Assocs., 44 F.3d 572, 576 (7th Cir. 1995).

In Harbor Ins. Co. v. Cont'l Bank Corp., the United States Court of Appeals for the Seventh Circuit closely compared the doctrines of judicial estoppel and "mend the hold" and concluded that the two are "cousin[s]." The similarities between the doctrines are clear. Both judicial estoppel and the "mend the hold" rule preclude the assertion of inconsistent factual positions before a tribunal, and both serve to preserve judicial resources, protect judicial integrity, and boost public confidence in the fairness of the judicial system.

Because of the strong similarities between judicial estoppel and "mend the hold," it is not surprising that the United States Supreme Court would cite McCarthy, a case applying the "mend the hold" rule, in support of its nascent formulation of judicial estoppel in Davis v. Wakelee. The latter doctrine is in many ways a natural extension of the former.

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