Smith v. Chilton

DENMAN, Associate Justice.

The Court of Civil Appeals for Second Supreme Judicial District have certified to us the following question: “Whether in a suit to recover the penalty provided in Article 3106 of the Revised Statutes of Texas for taking usurious interest the party suing is entitled to recover double the whole amount of interest so received, or only double the excess above what might lawfully have been contracted for and received." The section of the statute referred to was first enacted in this State in 1892 and is as follows: “If usurious interest, as defined by the preceding articles, shall hereafter be received or collected, the person or persons paying the same, or their legal representatives, may by action of debt, instituted in any court of this State having jurisdic7 tion thereof, within two years after such payment, recover from the person, firm or corporation receiving the same, double the amount of the interest so received or collected." It seems to be substantially the same as that portion of section 5198 of the Revised Statutes of the United States relating to the same subject matter, which has been this day construed bj this court in Boerner v. Traders’ National Bank, and we think it should have the same construction as there given to the Act of Congress. Therefore, in answer to the question certified, we hold that “the party suing is entitled to recover double the whole amount of interest so received.”