(dissenting).

I am in accord with my brothers in their refusal to approve the actions of appellee herein but further I cannot go.

The majority agrees with the court below that the cause of action involved herein is time barred and that appellant misused the bankruptcy court. I am satisfied that the latter conclusion influenced the former and I am unable to agree with either.

A reading of the entire record convinces me that the conduct of appellee was such that it should be held estopped to assert the statute of limitations.

Canadian Fire Insurance Company voluntarily turned over to the receiver the sum of $15,000.00 upon the condition that the receiver would ask and request from the court that all assignments and attachments on said money be released. This condition was never complied with. In fact, compliance was never even attempted. The receiver is an officer of the court ( 11 U.S.C.A. § 1 (22); United States et al., to Use of Merchants & Manufacturers Securities Co. v. Johnson et al. (C.A.8 — 1938), 98 F.2d 462 ) and the injustice giving rise to the instant action thus resulted from the nonfeasance of an officer of the court.

The trial court and the majority of the court herein view this action as being instituted on behalf of Canadian Fire Insurance Company as the real party in interest. In a technical sense this is probably true as Canadian Fire Insurance Company would undoubtedly benefit if the action below had been successful. In a very real sense, however, the real party in interest is the Federal judicial system; confidence and respect in the ability of the Federal courts to mete out justice. I view this action as one seeking such an objective. The trustee, who like *151 wise is an officer of the court ( 11 U.S.C.A. § 1 (22); Pearson v. Higgins (C.A. 9 — 1927), 34 F.2d 27 , cert. denied 280 U.S. 593 , 50 S.Ct. 39 , 74 L.Ed. 641 ), is seeking to correct an injustice resulting from the nonfeasance of another officer of the court, the receiver. It would appear that the majority, although recognizing that an injustice has been done, prefer to leave the correction to some other tribunal, the effect of which would be to sweep our own dirt under the rug in the hope that someone else will clean it up. In order to preserve the estates of bankrupts and to save needless expense to others in bankruptcy matters, voluntary action in the handing over of assets, such as was undertaken by Canadian Fire Insurance Company in this case, should be encouraged, not discouraged.

I think the referee reached the correct conclusion and I would reverse.