chapman and wish in c b quod vide ant variance in the claim from the grant of  conusance be fatal whether replevin be a mere personal action Eyre Ch just two  thing must be determine in this case before the principal matter can be come  at whether the conusance be proper demand for the grant of conusance be to the  chancellor master and scholar or their deputy and the claim be of a conusance  to be allow to Fitzherbert Gibbon the chancellor or his deputy which seem to  be a different conusance from that grant whether they may have conusance of  replevin for the charter be to have conusance omnimodor to please personali  and whether that be not to be take of plead mere personal as the grant be in  derogation of the subject right to the commonlaw be to receive the strict  construction and then whether a replevin be not a mix action and not mere  personal these point be direct to be speak to last term and now sergeant  chapel argue to the first that the charter of Richard be a grant of conusance  in the manner it be now claim and that charter as well as queen Elizabeth  stand confirm by Act of parliament and therefore it will be a warrant for the  present conusance to the second that replevin be a mere personal action for  the judgement therein do not affect the freehold for it be only for a return  of the distress and damage whereas to bring it within the notion of a real  action it shall create a lie upon the freehold sergeant Eyre contra the  question be not whether general a replevin be a personal action but whether  such a personal action as the franchise may have conusance of now if the  avowant claim property it become a mere personal action but if the avowry be  for rend and service it prove a real action Ro ab pl finch   godb to the  second point he argue that the old charter become surrender by the acceptance  of the new one in those part of it that be inconsistent with the new charter  and therefore that the confirmation by the Act of parliament go only to so  much as consist with the new grant charter for it can not be a confirmation of  a repugnancy then the variance be plain and the whole court be of that opinion  disallow the conusance for that reason for they say they decline to give their  opinion in the other matter as the case do not require it