An ispue of fact was joined on the 8th August, by the service of the reply to the defendants’ answer. It was therefore regular to move to refer the cause. (§ 270 of the Code.) It is no objection that the defendant’s time within which he might amend his answer by § 172 had not expired when the notice was served. It does not appear that he has since amended. The party is not bound to wait, before making the motion, to see whether the pleadings will be amended. He has a right to act upon them as they are served. A subsequent amendment cannot defeat a motion for a reference, unless by such amendment there ceases to be an issue either of fact or law between the parties.
The motion to refer must be granted to Wm. A. Beach, who is agreed upon as the referee in case the court grant the motion.