case warden against sir William rous a freeman of London be not deprive of his  right of vote for commoncouncilman by not have pay the orphan tax if it be not  demand of he a mandamus issue to the defendant a alderman of London suggest  that the plaintiff be duly choose a commoncouncilman for the ware of in the  city of London and command he to swear the plaintiff in accord or show cause c  to this the defendant return that the plaintiff be not duly elect into the  office of commoncouncil and upon that a issue be join and a special verdict  find videlicet that this be a ancient ware and have a court of wardmote belong  to it and nine commoncouncilman the return then set out the will mary c which  lie a tax on freeman of London and other for raise the sum of eight thousand  pound per annum towards the maintenance of orphan it also set out several  clause of the Geo c S the purport of which be that after the first day of June  the right of election of alderman and commoncouncilman for the several ware of  the city shall belong and appertain to freeman of the city of London be  householder pay scot and bear lot when require in their respective ware and to  none other whatsoever provide that modern the house of such householder be  respective of the real value of ten pound per annum at least and that such  householder be the sole occupier of such house and have be actual in the  possession of a house of such value in the ware where the election be make by  the space of twelve calendar month next before such election and for the  better ascertain what be the rate and tax to which such householder ought to  contribute and pay their scot the same be hereby declare to be a rate to the  church to the poor to the scavenger to the orphan and to the rate in lieu of  or for the watch and ware and to such other annual rate as the citizen of  London inhabit there shall hereafter be liable to except the annual aid grant  by parliament and if such householder shall have pay his scot to all the say  rate and tax or thirty shilling ayear to all or some of they he shall be deem  a person pay of scot that at a election for commoncouncilman the plaintiff  have seventysix vote of which thirtyfive have not pay the orphan tax but all  the other tax they have pay they find that no rate have be make for raise the  orphan tax since the year the yearly sum to be raise for the orphan tax have  be pay out of the city cash to the year and from that time it have not be pay  by the city and conclude that with these thirtyfive vote the plaintiff have a  majority of the candidate but they refer the right of these voter to the court  the question be whether a freeman of London who have pay all the other tax  except the orphan tax for which no rate have be make since the year shall by  his not pay this tax which be not demand of he and which be not in his power  to pay be deprive of vote for a commoncouncilman Dennison for the plaintiff  argue from the impossibility of his be able to pay a tax for which no rate be  make and that the Act of Geo must be construe to mean only those tax which be  subsist and this be not a subsist one be never demand and liken it to the  condition of a bind which be become impossible and so the bind save as where  the condition of a bind be to give security for a certain day as the  chamberlain of London shall appoint the defendant plead that there be no  chamberlain of London at the day and hold a good excuse for it be not in his  power to make one Noel for the defendant insist that this be a subsist tax  impose by Act of parliament and which can be dispense with by the city of  London and the word of the Act be express that the right of election shall  belong to such as be there describe pay scot and lot and to none other  whatsoever that the orphan tax be not raise yet it be in the power of a voter  to qualify himself by pay thirty shilling in the whole to all or any of the  tax which clause be add to give those modern er p people a liberty of vote  though they have not pay all the tax provide they pay thirty shilling in the  whole to all or any of they and it be not find that these thirtyfive voter pay  thirty shilling in modern the whole the Act intend to abridge the number of  elector and do not take away any right but only add a new qualification which  ought to be comply with either by pay the tax there mention or the thirty  shilling in the whole the court this case can receive do aid from the statute  of will mary c for though the city of London may make this a subsist tax by  make a rate and demand it proper yet as they have not do this it can be call a  subsist tax the statute of Geo c intend to abridge the number of elector by  confine the right of election to the most substantial I e to such only as pay  those rate thereinmentioned but then the Act must be construe to mean such of  they only as be subsist for if no rate or demand be make for those tax how can  they be pay and as it be not in the voter power to comply with the first part  require by the Act be be not put upon perform the alternative of pay thirty  shilling for if he pay all the rate in be be do as much as be be oblige to do  by the Act for the alternative extend only to one who have not pay all the  rate in be but have pay thirty shilling in the whole and as no rate be make  for this tax it be a case out of the Act and not take notice of therefore they  be all of opinion that these thirtyfive voter be good a peremptory mandamus be  grant