An officer, in the execution of valid criminal process, is justifiable in breaking the outer door of a dwelling-house, after demanding admittance and being refused. This is not questioned by the defendant. The single question in this case therefore is, whether the assistant clerk had authority to sign the process in the service of which the plaintiff broke the defendant’s door. If he had that authority, then that process was lawful on its face, and the plaintiff is entitled to maintain this action. The assistant clerk’s authority is denied by the defendant, for the reason that, by the Constitution of the Commonwealth, “ all writs issuing out of the clerk’s office in any of the courts of law shall ” (among other things) “ be signed by the clerk of such court.” It is contended that an assistant clerk is not “ the clerk,” within the meaning of the Constitution. But a majority of the court are of opinion that any person who is lawfully authorized to act as clerk and do the duties of clerk is the clerk ” who is authorized to sign writs issuing from the *76clerk’s office. Such is the long settled practical construction of this part of the Constitution.

By St. 1782, c. 9, establishing a supreme judicial court, it was enacted that “ all wilts and processes ” of the court should be (among other things) “ signed by the clerk.” There was the same enactment in St. 1782, c. 11, establishing courts of common pleas. Yet, in the first of these statutes was this direction “ The justices of the supreme judicial court shall, from time to time, appoint a clerk, or clerks, to attend said court, and to record the proceedings thereof, and to do all other things which shall be by law their duty to do.” And such has ever since been the statute law, till, by the recent change in the Constitution, clerks were made elective officers. St. 1830, c. 129. Rev. Sts. c. 88. Whenever the court, by virtue of that statute law, appointed two clerks, each of them was always deemed “the clerk ” authorized to sign all writs and processes, and each did sign them. On the construction of the Constitution, now contended for, we do not see how any processes, so signed, were lawful. For the words “the clerk,” on that construction, are not applicable to two clerks, or to either one of two rather than the other. Neither could have been “ the clerk,” unless each was.

When we find that, within two years after the Constitution went into operation, the legislature (of which many members had been in the convention which framed that constitution) passed the act of 1782, c. 9, copying into it the provision of the Constitution concerning the signing of writs, and then providing for the appointment of more than one clerk, it is manifest that they could not have understood that, by the Constitution, only one person in a county could be “ the clerk ” of the court, who could rightfully sign writs and processes. The contrary is inevitably to be inferred from their legislation ; and as the construction thus given to the Constitution has been adopted and acted upon for nearly fourscore years without question, it is too late to hold otherwise now, even if we could entertain a doubt as to the construction which we should deem right, were the point now raised for the first time.

*77Within a few years, this court has been authorized to appoint assistant clerks, whose duties and authority are set forth in the statutes authorizing their appointment. By the act-under which the assistant clerk in this county was appointed, (St. 1851, c. 38,) he is authorized to “ authenticate papers, and perform such other duties of the clerk as shall not be performed by him ; and in case of the absence, neglect, removal, resignation or death of the clerk, may complete and attest any records remaining unfinished, and act as clerk of the courts in the said county until a new clerk be appointed and qualified.” This, in our opinion, gave the assistant clerk authority to sign the process which was served by the plaintiff. The signing of it was one of the duties of the clerk, but, for a good reason, “ not performed by him.” Exceptions overruled