The line of distinction between the cases of false representations that come within the statute and those that do not,is so very narrow and the cases bordering thereon so shadow into each other, that it is often difficult to decide upon which side they fall.
There have been but few of such indictments in this state previous to the year 1871, -when the case of State v. Phifer, 65 N. C., 321, came here on appeal. The court in that case laid down the rule which has been since followed, “ that a false representation of a subsisting fact, calculated to deceive and which does deceive, and is intended to deceive, whether the representation be in writing, or in words, or in acts, by which one man obtains value from another, without compensation, is a false pretence, indictable under our statute,” but with the qualification that it did not extend to the mere “ tricks of trade,” as they are familiarly called, by which a *753man puffs his wares, and deceives no one — as this is an excellent piece of cloth, or this is the best horse in the world. To illustrate further: if one, in selling a tract of land, makes false and exaggerated representations of its fertility, &c., that will not be indictable; but if he falsely states that there is a house on the land, that is a false pretence, because it is a false statement of a subsisting or specific fact. So in the sale of a horse, if the seller should say he is first class, all right, that would not come within the statute ; but if he-said it is the celebrated horse, “ Charlie,” and it is not, that is indictable, for it is the false representation of a subsisting fact.
Bishop, in his treatise on Criminal Law, (vol. 2, p. 431), says : “ Now an opinion, a mere opinion, is not a false pre-tence, but any statement of a presenter past fact is one if it is false. When two men are negotiating a bargain they may express opinions about their wares to any extent they will, answering, if they lie about the opinions, only to God and to the civil department of the law of the country.” So-in a New Jersey case, State v. Tomlin, 5 Dutcher, 13, referred to by Bishop, on page 434, where a man was induced to part with a note held upon a debtor, at a sacrifice, by the false statement that he was of small means, and unable to-pay the debt in full, which he knew to be false; it was insisted in his behalf that whether this debtor was insolvent or not, and was unable to pay in full or not, were matters of opinion, but the majority of the court held they were matters of fact, in distinction from opinion ; therefore the indictment could be sustained. This is like our case. The defendant falsely stated “ that there never had been anything the matter with the eyes of the mare.” If he had simply stated that the eyes of the mare wrere sound, this would have been nothing more than the expression of an opinion, which we think would not have come within the statute; but when he says there never has been anything the *754matter with them,, this is a fact, and when it is negatived and proved that her eyes were- diseased,and had been operated upon for “the hooks,” within the knowledge of the defendant, it is the false representation of a fad, and is a false pretence within the statute.
There iserror. The judgment of the court below must be-reversed. Let this be certified to the superior court oí Tran" sylvan ia county, that further proceedings may be bad according to- this- opinion and the- law.