[376]. In Le Lievre v. Gould, (1893) 1 Q. B. at p. 500, it is said by Lord Justice Bowen: “If the case had been tried with a jury, the judge would have pointed out to them that gross negligence might amount to evidence of fraud, if it were so gross as to be incompatible with the idea of honesty, but that even gross negligence, in the absence of dishonesty, did not of itself amount to fraud.” Literally read, this implies that, though gross negligence cannot be fraud, it may be evidence of it, but this of course is impossible. If two things are inconsistent with each other, one of them cannot be evidence of the other. The true meaning is that alleged or admitted negligence may be so gross as to be a ground for the inference that it is in reality fraud and not negligence at all; see also Kettlewell v. Watson, 21 Ch. D. at p. 706 per Fry, J.
[377]. Stephen, Digest of the Criminal Law, Art. 244, 5th ed.
[378]. Austin, Lecture XX.; Birkmeyer, Strafrecht, sect. 17; Clark, Analysis of Criminal Liability, ch. 9.
[379]. Clerk and Lindsell, Torts, p. 457, 4th ed.: “Negligence is the omission to take such care as under the circumstances it is the legal duty of a person to take. It is in no sense a positive idea, and has nothing to do with a state of mind.” Cf. Pollock, Torts, pp. 437–439, 8th ed.
[380]. The question is discussed in Holmes’s Common Law, pp. 81–96 and in Pollock’s Law of Torts, pp. 136–148, 8th ed.
[381]. As to mens rea in criminal responsibility see Reg. v. Tolson, 23 Q. B. D. 168; Reg. v. Prince, L. R. 2 C. C. 154; Chisholm v. Doulton, 22 Q. B. D. 736.
[382]. The rule is not limited to civil and criminal liability, but extends to all other departments of the law. It prevents, for example, the recovery of money paid under a mistake of law, though that which is paid under a mistake of fact may be reclaimed.
[383]. Regula est juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere. D. 22. 6. 9. pr.
[384]. Hollins v. Fowler, L. R. 7 H. L. 757; Consolidated Coy. v. Curtis, (1892) 1 Q. B. 495.
[385]. Reg. v. Prince, L. R. 2 C. C. 154.