Edwards, Justice. There is no issue formed by the pleadings which ought to prevent the court from granting the order of reference asked by the plaintiffs. The act of 1847, {Laws of 1847, p. 557, § 4,) provides that when it shall appear to the court that the several persons interested in lands, &c., of which , partition is sought, are desirous of enjoying their several shares or interest in common with each other, the court may direct, &c. This certainly contemplates that the provisions for setting apart the shares of those who desire to remain without partition, shall be made before the final decree is made.
The plaintiffs are entitled to the order of reference asked for, and if the defendants desire it a provision must be inserted in the order, that the referee ascertain and report whether the shares of the defendants can be set off to them to be enjoyed in common.