Surprise

1.

In equity is not a technical teim. Johnson's common definition explains it: the act of taking unawares; the state of being taken unawares; sudden confusion or perplexity. When equity relieves for surprise it is on the ground that the party has been taken unawares, has acted, without due deliberation, under confused and sudden impressions. Loosely used, the word may presume or import "fraud;" in accurate usage it refers to something done which, as being unexpected, misleads or confuses on. the sudden, and thus operates as a fraud.

2 Compare Mistake. 2.

In statutes providing for amendments of pleadings at trial, and the granting of new trials: such variance between the allegations and the proofs as misleads the opposite party in maintaining his action or defense on the merits. It constitutes a material variance which the party is not prepared to meet and could not expect.' One remedy for a surprise is a motion for a new trial.* The surprise for which a court will set aside proceedings, fair and regular on their face, which have resulted in vesting rights to realty in a purchaser, must be a legal surprise, without fault in the person alleging it.^ It must be absolutely impossible for the adverse party to be taken by surprise by an amendment which does not touch the merits or substance of a cause. ^ A modification, not a change, in the cause of action, is allowed — any alteration, indeed, which does not affect the identity of the transaction.'

See Allegation.