majority">Porter, J.,

delivered the opinion of the court.

The petitioner alleges, that he confessed judgment in favor of the defendant, upon an account presented, which he believed to be correct, but that he has since discovered that several items of it were false and fraudulent. He further charges, that the defendant has issued an execution on the judgment so obtained, and is about to seize and sell *93his property, and he prays for an injunction until the matters set forth in the petition can be investigated.

tion of mefyenr applies to an action instituted to correct a former itíXegVíeroftho“items comSSy chai|edj tionlfbo“Cbrought after ti™ ajudgft°udV°hMmbcen a year.

*93The parties went to trial in the court below on an issue formed by the general denial. The court made the injunction perpetual for the sum of sixty-eight dollars and thirteen cents.

The defendant appealed.

There is a plea of prescription, which requires to be axamined before we can look into the other matters in contest.

We are of opinion this plea is sustained. The 613th article of the Code of Practice provides, that when a judgment has been obtained through fraud, the action must be brought within one year after the fraud has been discovered, or the receipt found. There is no proof on record, that the discovery of the alleged fraud was less than twelve months before the institution of the action, and this action was brought more than twelve months after the rendition of the judgment.

This case was attempted on the argument to be assimilated to that of Paxton vs. Cobbs, but the analogies between them are too remote, to permit us to apply the same rules in both. In the latter, the judgment of the court was made the basis of a new action, in which different things were claimed from those given by the first decree, and the defence of nullity was presented as an exception. Here, the first judgment is about to be carried into execution, and that execution can only be suspended by an action of nullity, if the grounds on which it is sought to be instituted are matters arising previous to the judgment being rendered. Such an action must be brought within one year. This construction is greatly strengthened by the declaration in the Code of . Practice that, the nullities in judgments which arise from ° ° incompetency in the judge, or incapacity in the parties, are not prescribed so long as they are unexecuted; while, in those which proceed from fraud in one of the parties, the prescription is made to commence from the time the fraud is discovered. Thus suspending the prescription in the one *94case un^ plaintiff attempts to execute the judgment, and declaring in the other, that it shall run upon a totally distinct consideration. Code of Practice, 612, 613. 2 La. 138.

tyASsh0pflduPded judgment on tim tim “iapsoy’ofaoné tho^mkion^sets mnuorEarishig ment complained of, they will be inquired ¡uto.payment'^given since the institution of suit, and not claimed in an amended petition, will not. if directcd to be admitted SonVeofhpayment con,0 prayhigj to proceedid^asan execution.where interest are Sg<Hn"a attacked as erroneous, proof of an agreement must be produced or the charge will bo rejected.

But in addition to the frauds alleged in relation to the judgment, there are charges m the petition oi payments having been made since it was rendered, for which the plaintiff is entitled to a credit. As these relate to matters arising after payment, they are a proper subject of inquiry, On this head the allegation in the petition is, that ninety-nine bales of cotton were shipped to the defendant between the months of October, 1829, and April,' 1830; and that there remained five hundred seventy-nine dollars and twenty-seven cents, for which he had not accounted.

. . A bill oi exceptions was taken by the plaintiff to the rejection by the court of a receipt « ÍOF ,nnn on the 24th January, 1832. J of the defendant, a large sum of money. The receipt is dated As the petition claims the injuncti0n on totally distinct grounds from that of any pay-ment at that time, or in that way, we think the court did not err in rejecting it.

The defendant was interrogated whether the ninety-nine fjales of cotton alluded to in the petition, had not been sent to him. He answered that the house to which he belonged, had received but ninety-five, and that the proceeds had been paid and distributed, at the request and in pursuance of the directions of the plaintiff. The account of that distribution is annexed to the answer, and shows a balance of three hundred eighty-three dollars and ninety cents, in favor of the defendant. The balance was subsequently credited on the judgment now sought to be enforced,

We have examined that account, and we can discover no other errors in it, save a charge of interest at ten per cent., for which, nor ior interest at any other rate, is there proof . _ . r . . . . . _ in writing; and a charge ior commissions, m advancing cash. . The charge appears to fall within the same principles on o x x x x which we rejected a charge for acceptances, in the case *95of Millaudon vs. Arnaud, decided at the last term of this court. These amount to forty dollars and sixty-six cents.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and it is further ordered and decreed, that the injunction granted in the case be perpetuated for the sum of forty dollars and sixty-six cents, the defendant paying costs in the court of the first instance, and the plaintiff those of appeal.

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