concurring in result.
I am constrained to concur in the result of Judge Crist’s opinion. However, I ob*732ject to the indiscriminate application of Lord Mansfield’s1 rule to the particular fact situation of this case because as I view the alleged juror misconduct, it collides with and imperils the fair trial concept which is so deeply entrenched in the American system of jurisprudence. 32 A.L.R.3d 1356, 1365.
This rule has been severely criticized by Wigmore2 and under the circumstances of this case the rule should not have been applicable. There was no hearing.3 It would seem the better application of the rule would be that the trial court conduct a hearing to determine if any misconduct did occur.
The sound rationale for a hearing and the court’s interrogation of the jurors is:
1. In the absence of any statute, of any legal or court rule, or if any declaration of public policy to the contrary, a court has the discretion, if not the inherent authority, to conduct such an interrogation because of its general supervisory powers, its control over the jurors, and its conduct of the trial.
2. Litigants are legally entitled to a fair trial before a jury sworn to consider only the evidence presented to it in court. It is the court, and the court alone, which is charged with the primary burden of assuring the litigants that their right to a fair trial is not an illusory legal concept but a legal reality.
3. The integrity and effectiveness of the jury system is at stake where there is juror misconduct. Consequently, the court should interrogate the jurors to determine whether such misconduct actually occurred, and, if so, whether the litigants were prejudiced thereby.
4. To the end that court interrogation of the offending jurors preserves and protects the fair trial concept and the integrity and effectiveness of the jury system, the ends of justice are served. A.L.R.3d Vol. 32, pp. 1366, 1367.
. Vaise v. Delaual, 1 T.R. 11 (K.B.1785).
. Wigmore on Evidence, Vol. VIII, Section 2346 et seq.
. The trial judge had a serious coronary illness and the motion was never heard. After 90 days the motion was taken as denied.