ceeded on the same principle. In Squier v. Gale (1821) 6 N. J. L. 156, the supreme court of New Jersey held that a mandamus would lie to an inferior court to command them to proceed to judgment, but not to command them to proceed to any particular judgment. Roberts V. Holsworth (1828) 10 N. J. L. 57, Hankins v. Bennet (1830) 12 N. J. L. 179, and County Ct. v. Daniel (1812) 2 Bibb (Ky.) 573, are to the same effect." In Ewin v. Cohen (1885) 63 Tex. 482, the court said: "The county court, in this case, had passed upon the sufficiency of the appeal bond made by Cohen. It had taken into consideration the question as to whether or not the bond was made payable to the proper obligee. In order to determine this question, according to the appellee's own argument, it was necessary for the judge to ascertain to whom the city ordinances required the instrument to be made payable. Finding that they named the city as the obligee, he had then to examine as to whether, under the Constitution and laws of the state, a bond payable to the state of Texas could be sustained. If his conclusion as to the payee of the bond was unfavorable to Cohen, he had then to pass upon the question of Cohen's right to the appeal without a bond, having given due notice of appeal. All these points he decided adversely to Cohen, who then sought and obtained the judgment of the district court that the county judge was wrong in his conclusions, and must reverse his judgment dismissing the appeal. And now that the cause is before this court, we are asked to examine into all these questions of constitutional and statute law, and, if we agree with the district judge, that we compel the county court to receive a bond which, in its opinion, is void under the laws of the state. How we can do this, or how the district court could do it, without controlling or revising the judicial discretion of the county judge, we are unable to see. The appellee contends that the district court was merely compelling the performance of a preliminary act. Be it so; yet we know of no rule of law that places the judicial discretion of one court upon a preliminary question within the control of another, though it may be of superior jurisdiction. It is not the point at which the proceedings may have arrived that governs the right to the mandamus. It is the nature of the question upon which the court is called to pass, and the character of judgment it must render. A judgment dismissing a cause for want of a sufficient appeal bond is a final disposition of the cause in the court rendering it, and in the present case involved as intricate questions of law, probably, as would have arisen upon a final trial of the cause upon the law and the facts. The fact that the appellee here had no other remedy does not entitle him to that of mandamus. It is well settled that whilst mandamus issues only when the aggrieved party has no other adequate remedy, the converse of the proposition is not true, that when he has no other remedy he may resort to the writ of mandamus. Similar questions upon the law of mandamus, and indeed the identical question presented by this appeal, have been before other courts, and have, perhaps without exception, been decided against the right to make use of the writ in such cases. And the writ is refused, though it be evident to the superior court that the judgment of the inferior court was wrong. People ex rel. Brower v. Judge of Wayne County Ct. (1850) 1 Mich. 359; Judges of Oneida C. P. v. People (1837) 18 Wend. (N. Y.) 79; Ex parte Newman (1872) 14 Wall. (U. S.) 152, 20 L. ed. 877; State ex rel. Treadway v. Wright (1868) 4 Nev. 119; People ex rel. Doughty v. Judges of Dutchess C. P. (1839) 20 Wend. (N. Y.) 658; People ex rel. Wheaton v. Weston (1865) 28 Cal. 639; Carpenter v. Bristol County (1838) 21 Pick. (Mass.) 258." In State ex rel. McIntyre v. Superior Ct. (1899) 21 Wash. 108, 57 Pac. 352, it was held that if the amount in controversy was too small to give the supreme court jurisdiction on appeal, it could have no jurisdiction to issue mandamus; and if the amount was large enough for that purpose, the fact that complainant had an adequate remedy by appeal would prevent mandamus from being issued. the In St. Louis & S. F. R. Co. v. Shinn (1898) 60 Kan. 111, 55 Pac. 346, supra, the ground of dismissal was amount of the bond for the appeal, and the holding was that the dismissal of the appeal was a judicial act. The same ground for the holding was given in Goheen v. Myers (1857) 18 B. Mon. (Ky.) 424, where the appeal had been dismissed for supposed want of jurisdiction. It was also pointed out that complainant had another remedy. And the writ has been denied where the court had determined either the merits of the question involved or that the appellant has failed to comply with the prescribed forms of law. State ex rel. Hyatt v. Smith (1891) 105 Mo. 6, 16 S. W. 1052. On the same ground, the writ to compel the reinstatement of the appeal was denied in Lewis v. Barclay (1868) 35 Cal. 213, where the appeal had been dismissed on the ground that it was taken upon questions of law alone, and it was not accompanied by a statement. But the case seems to be overruled in Peacock v. Superior Ct. (1912) 163 Cal. 701, 126 Pac. 976. It has been held that mandamus will not lie to compel a court to act, where it has erroneously dismissed an ap.. peal for lack of a government stamp, which the court believed was required by act of Congress. People ex rel. Wheaton v. Weston (1865) 28 Cal. 639. The writ was denied upon the theory that, after a court has acted judicially, it cannot be compelled to act differently. In Levy v. Superior Ct. 66 Cal. 292, 5 Pac. 353, supra, the writ was denied on the ground that its issue would not annul the order dismissing the appeal, but would simply ignore it, and the court suggested that certiorari to annul the order is the proper remedy, where the appeal had been dismissed upon the erroneous holding that the undertaking for the appeal was insufficient. J. W. M. A written lease for a term of years may be surrendered by agreement of the parties thereto, without the execution and acceptance of a release in writing. If the facts and circumstances show a mutual understanding and agreement to terminate the relation of landlord and tenant, a surrender of possession by the latter, and the recognition of another tenant by the former, such lease will be deemed to have been "surrendered." [See note on this question beginning on page 666.] Headnote by WEST, J. APPEAL by defendants from a judgment of the District Court for Marion County in plaintiff's favor in an action brought to recover rent alleged to be due under the terms of a written lease. Reversed. The facts are stated in the opinion of the court. Messrs. Dean & Williams for appellants. Mr. H. S. Martin for appellee. West, J., delivered the opinion of the court: This was an action to recover rent claimed to be due by the terms of a written lease. Neither the abstract nor the transcript for which we have sent sets out the lease, but it is stated in the brief of the appellee that it was a long-time written lease, containing an agreement to pay $50 a year and all taxes and assessments of whatsoever kind or nature, whether general or special, which might be levied against the real estate. It appears that the lease was made to the defendant Goff, who, after occupying the land. about two months, sold the livery barn upon the property to the defendant Dockstader. Goff testified that after he sold to Dockstader he saw the plaintiff and asked him if it would be all right to sell and was told that it would; that he then settled for the rent up to the 1st of July, and told the plaintiff he would have to look to Dockstader for the rent, to which the plaintiff replied: "All right." Dockstader testified that when he was buying the livery barn he asked Goff what kind of a lease he had on Dr. Rogers's lots, and was told that he had none. That after he bought he saw the plaintiff, and said: "What about this lot, what are you going to charge me for it?" And that the plaintiff replied: "Fifty dollars a year and taxes." That he paid the taxes in 1909 and boarded the plaintiff's horse, and when he went to pay the taxes for 1910 he found the tax was $246 and some cents, of which it appears that $238.97 was sidewalk tax and $7.72 sewer tax. From the transcript we learn that plaintiff testified as follows: Q. It was at that time, was it, Doctor, that Mr. Goff came to you and told you he had sold the barn to Dockstader, and he figured up with you the amount that was be tween you, and you paid him some money? A. I think so. On cross-examination, Goff testified: In regard to that lease, I says: "Now I have settled up with you until the 1st day of July. You are to look to Dr. Dockstader for your rent." He said he would. Q. That was all he said, was it? A. Yes, sir; that was about all he Isaid that I remember of. Q. You are sure that is all he said? A. Yes, sir. He further testified that since that time the plaintiff had never said anything to him in regard to the rent or made any demand upon him. Dockstader testified that the board bill for the plaintiff's horse amounted to about $151; that he also paid the taxes for 1909 and offered to pay the taxes for 1910, except the special assessments. Plaintiff denied that he had any agreement whatever with Goff to release him from his written lease, and denied the recollection of any talk with Dockstader, except that the latter at one time asked him something about the lease. By consulting the defendants' brief we learn that the court instructed the jury that as to the defendant Goff there was no evidence offered that would relieve him from liability for whatever rent was due and unpaid upon the lease in question; that his testimony to the effect that he made an oral or verbal agreement with the plaintiff from which he was to be released was not binding in law, and, even if such oral release was attempted to be made, Goff would still be liable for any rent which was still due and not paid upon the lease; that to be relieved by the lessee the release must be in writing, and the verdict should be for the plaintiff against Goff for the amount of rent, including the taxes assessed and levied against the property. It also appears from the same document that the court re (90 Kan. 189, 133 Pac. 717.) fused an instruction to the effect that, if Dockstader was in possession under a verbal agreement to pay a stated sum and the tax as annual rent, special assessments for improvements upon the premises are not taxes. It is also stated that the jury returned a verdict for the plaintiff, but for what sum and against whom we are not advised. As nearly as we can ascertain from these various sources, it would seem that the question presented is whether or not a lease for a term of years can be surrendered otherwise than by a release in writing. In Weiner v. Baldwin, 9 Kan. App. 772, 59 Pac. 40, an instruction that the agreement to surrender a lease need not be in writing was approved. "A surrender, as the term is used in the law of landlord and tenant, is the yielding up of the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. The rescission of a lease, when by express words, is called an express surrender or a surrender in fact: and when by acts so irreconcilable to a continuance of the tenure as to imply the same thing, it is called a surrender by operation of law." 24 Cyc. 1366. "While the definitions of what constitutes a surrender by operation of law differ somewhat in the language used, the rule may safely be said to be that a surrender is created by operation of law when the parties to a lease do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made." 24 Cyc. 1367. "Where a landlord grants a new lease to a stranger, with the assent of the tenant, during the existence of an outstanding lease, and the tenant gives up his own possession to the stranger, who thereafter pays rent, or where in any other way a new tenant is, by agreement of the tenant and the landlord, substituted and accepted in place of the old, there is a surrender by operation of law. It is immaterial that the old lease is not canceled, or that the original lessee signs the new lease as surety." 24 Cyc. 1370. "An express agreement to accept the premises need not be shown, but the landlord's consent may be implied from circumstances and from the act of the parties. There must, however, be some unequivocal act on the part of the landlord, which unmistakably evinces an intention on his part to terminate the lease and the relationship of landlord and tenant." 24 Cyc. 1373; Taylor, Land. & T. 9th ed. §§ 509, 514, 575. It must be true upon principle that when, prior to the expiration of a written lease, the landlord and tenant agree to terminate the relation, and possession of the premises is surrendered up by the tenant to the landlord, who lets to another, and agrees to and does look to such other for the rent, the same result is effected as by a written release and Landlord and tenant written lease. acceptance. surrender of Section 5 of the Frauds and Perjury Act of General Statute of 1909, § 3837, is referred to. This provides that no lease, estates, or interests of, in, or out of lands, exceeding one year in duration, shall be assigned or granted unless by deed or note in writing, etc. The succeeding section, prescribing that any contract for the sale of lands or any interest in or concerning them must be in writing, is also referred to, but the manifest application of these sections is to grants of interest rather than to a surrender of an interest already granted. But even if directly applicable, still the law would not permit the landlord, after having settled in full and accepted a surrender of the possession of the premises and assumed full dominion and control by reletting to another, to claim the aid of a court to disregard such acceptance and recognition on his part and still hold the lessee for rent for which the landlord had agreed to look to an other. In Northrop v. Andrews, 39 As we are not advised whether or not the jury included the special assessments in the amounts of their verdict, we are unable to say that I. Introduction, 666. II. General rule: the refusal of the requested instruction touching the definition of the word "taxes" was prejudicial. While, as ordinarily used in the statutes, taxes are not special assessments, or vice versa, still the use of the word "taxes" in a contract may call for a meaning to be determined by the terms of the instrument and by the circumstances surrounding the transaction. Chicago G. W. R. Co. v. Kansas City N. W. R. Co. 75 Kan. 167, 88 Pac. 1085, 12 Ann. Cas. 588. The instruction that there was no evidence offered that would relieve Goff from liability, and that the verbal agreement testified to by him would not be binding in law, and that a release could only be had by a written instrument, was incorrect, and testimony touching the transaction between the parties should all have been considered for the purpose of ascertaining whether or not the relationship of landlord and tenant was, by mutual agreement, terminated. We have been embarrassed by the lack of information as to what was really done in the court below, but from such means as we have been able to obtain we reach the conclusion that the instruction referred to was erroneous. The judgment is therefore reversed, and the cause remanded for further proceedings in accordance herewith. ANNOTATION. Surrender of a written lease by parol. a. In general, 667. b. Lease not required to be in writ- c. Unexpired term less than that I. Introduction. The Statute of Frauds is now so commonly enacted that the question under annotation herein is governed almost wholly by its provisions. In the absence of a statute of frauds, it has III. Effect of delivery of possession: been held that a term of years may be surrendered by parol. Gwyn v. Wellborn (1835) 18 N. C. (1 Dev. & B. L.) 313. Before the Statute of Frauds the tenant in possession of a corporeal hereditament might surrender his |